Berlin Regional Court, April 16, 2015, Case No.: 67 S 14/15
According to § 573 Paragraph 1 of the German Civil Code (BGB), a landlord can only terminate a rental agreement for valid reasons if they have a legitimate interest in ending the tenancy. Termination for the purpose of raising the rent is excluded. A legitimate interest on the part of the landlord particularly exists when the tenant has culpably and significantly breached their contractual obligations, the landlord requires the premises as a residence for themselves, their family members, or members of their household, or if the continuation of the tenancy would prevent the landlord from making reasonable economic use of the property, resulting in significant disadvantages. § 573 Paragraph 1 No. 2 BGB provides the landlord with the option to terminate the tenancy in cases of personal need.
In the following ruling, the Berlin District Court clarified that the landlord cannot rely on a termination due to personal need if it violates the principles of good faith. This applies particularly when the landlord fails to offer a vacant alternative apartment, even if the tenant refuses to rent the alternative apartment following a later termination notice. Bad faith can only be dismissed if the tenant had no interest in renting the alternative apartment at any point.
Furthermore, the court addressed a termination issued later in the proceedings, governed by § 533 of the German Code of Civil Procedure (ZPO). According to this section, changes to the claim, counterclaims, or set-off declarations are only permissible if the opponent consents or if the court deems them appropriate. They must be based on facts that the appellate court must consider according to § 529 ZPO.
Consequently, the appellate court can only take into account a new termination declared in a subsequent first-instance submission allowed under § 283 ZPO if it is based on the same factual circumstances as a previously introduced termination.
According to the court, this is not the case if the first termination was based on the creation of a secondary residence, while the subsequent termination in the allowed submission refers to shifting the main residence to the disputed apartment.
This constitutes a new cause of action, which cannot be considered under § 529 ZPO.
Introduction: Termination Due to Personal Need
In the present case, the dispute concerned the termination of a rental agreement due to personal need. The plaintiffs, who had rented an apartment to the defendants since 1998, terminated the tenancy on November 23, 2012, citing personal need. However, the plaintiffs did not offer the defendants the rental of a vacant apartment below, leading to legal disputes. The District Court rejected the claim for eviction and surrender, prompting the plaintiffs to appeal.
Legal Situation: Termination and Duty to Offer
The key issue in the ruling was whether the plaintiffs fulfilled their duty to offer. This duty stipulates that a landlord terminating a lease due to personal need must offer the tenant another comparable apartment within the same building or housing complex, if one is available. Since the plaintiffs failed to do so, the defendants argued that the termination was invalid due to a violation of the duty to show consideration.
Court Decision: Abuse of Rights Due to Failure to Offer
The Berlin Regional Court upheld the decision of the District Court and dismissed the plaintiffs‘ appeal. The court ruled that the plaintiffs had no claim for eviction and surrender, as the tenancy was not terminated by the notice of November 23, 2012. The crucial factor was the plaintiffs‘ failure to offer an alternative vacant apartment, rendering the termination abusive.
Although the personal need could have been valid under § 573 Paragraph 2 No. 2 BGB, the plaintiffs failed to offer the vacant alternative apartment to the defendants. The court emphasized that the termination of a rental agreement represents a significant intrusion into the tenant’s life, and the landlord is obligated to mitigate this impact as much as possible.
Plaintiffs‘ Arguments and Rejection
The plaintiffs argued that the defendants had stated in a letter dated December 15, 2014, that they had no interest in renting the vacant apartment. However, the court did not consider this to exempt the duty to offer. Even though the defendants declined the apartment, the obligation to offer it persisted during the termination period. Additionally, the plaintiffs argued that the apartments were not comparable, but the court refuted this. The alternative apartment was similar in size and number of rooms, and the kitchen-living room was to be treated as a regular room.
Conclusion: Invalidity of the Termination Due to Personal Need
Ultimately, the court ruled that the termination of November 23, 2012, was invalid because the plaintiffs failed to fulfill their duty to offer an alternative apartment. The second termination, submitted later on November 10, 2014, was not considered due to procedural reasons. Therefore, the tenancy remained in effect, and the plaintiffs could not enforce the eviction of the apartment. The ruling highlighted the importance of the duty to offer and showed that violating this duty could lead to the invalidity of a termination due to personal need.
Source: Berlin Regional Court
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