Freiburg District Court, October 1, 2013, Case No.: 53 C 1059/13
A tenancy agreement can be terminated, among other things, by a notice of termination or a cancellation agreement. The tenant’s breach of contract can lead to an immediate termination without notice.
In the case of immediate termination, the requirements of Sections 543 and 569 of the German Civil Code (BGB) must be observed. However, before a landlord can expect a tenant to face immediate termination due to a breach of contract, the tenant must be informed of the specific behavior that will no longer be tolerated.
This means that the landlord must clearly specify and warn about each breach of contract in order to later successfully terminate the agreement without notice.
The Freiburg District Court addressed the validity of a termination agreement and an extraordinary termination in the above-mentioned ruling as part of an eviction lawsuit.
In this case, the plaintiff landlords demanded the eviction and return of a rental apartment. Initially, they based their claim on a signed eviction agreement, alternatively on an immediate termination without notice. The eviction agreement was signed in the defendant tenant’s apartment. For this purpose, one of the plaintiffs, a consultant for the plaintiffs, and their lawyer visited the defendant after prior notice. However, shortly after signing, the defendant declared that she was withdrawing from the agreement. Regarding the immediate termination, the plaintiffs argued that the defendant had repeatedly paid rent late. In addition, she paid the back utility costs in installments, although no corresponding agreement existed. However, the termination notice did not explicitly refer to the installment payments.
Revocation of the Eviction Agreement
The Freiburg District Court ruled that while the eviction lawsuit was admissible, it was unfounded. The claim for eviction and return of the apartment did not arise from the signed eviction agreement. The defendant had effectively revoked her declaration of intent in accordance with Sections 312 and 355 (1) of the BGB. This was a door-to-door sale, as the agreement was made in the defendant’s private apartment after oral negotiations. Thus, the right of revocation under Section 312 BGB applied, and the revocation was made within the statutory period, rendering the agreement void.
Invalid Immediate Termination
The eviction lawsuit based on the immediate termination was also unfounded. According to the District Court, the requirements for immediate termination under Sections 543 (1) and 569 BGB were not met. According to Section 569 (4) BGB, all reasons for immediate termination must be stated in the termination notice. Reasons not mentioned cannot be considered when assessing the termination. Since the plaintiffs did not refer to the installment payments of utility costs in the termination notice, this could not justify the termination. Although the defendant’s late rent payments were generally considered a breach of contract, an immediate termination is only justified if this breach is sustained. In this case, while seven late payments within a year could be considered sustained, the defendant had not been previously warned. According to case law, a tenant must be clearly warned that the landlord will no longer tolerate certain behavior before an immediate termination due to a breach of contract can be expected.
No Ordinary Termination Possible
In this case, although the defendant repeatedly paid rent a few days late, this was not expressly criticized. Instead, the warnings referred to a different issue, namely that the defendant had underpaid by a small amount of €10 on one occasion. Therefore, an immediate termination could not be effectively declared against the defendant. Additionally, no ordinary termination under Section 573 (2) No. 1 BGB was issued. The late rent payments did not constitute such a significant breach of contract that continuing the tenancy would be unreasonable for the plaintiffs. While punctual payment of rent is a fundamental element of a tenancy agreement, the delays in this case did not justify the termination of the contract.
Court Decision
Finally, the District Court ruled that the eviction lawsuit was dismissed. Neither the eviction agreement nor the immediate or ordinary termination justified the plaintiffs‘ claim to the return of the apartment.
Source: Freiburg District Court
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