Hanover Local Court, 04/02/2014, Ref.: 406 C 8685
Since the introduction of guardianship law in 1992, legal guardianship has replaced guardianship over adults.
Legally assisted persons are those who are no longer able to manage their own affairs due to mental illness, mental disability, senile dementia or frailty, or due to a severe physical disability.
In order to be able to manage the affairs of the person being cared for, the legal guardian is assigned so-called areas of responsibility by the competent guardianship court.
One such area of responsibility is, for example, "housing matters". Within the scope of this area of responsibility, the carer must carry out all tasks for the person being cared for that are of a tenancy law nature.
If the tenant of a flat is under guardianship and the guardian is responsible for housing matters, there are various special features in the legal relationship between tenant and landlord that must be observed by all parties.
If, for example, the tenant in care is legally incapacitated, a warning for non-contractual use or a notice of termination by the landlord must be served on the carer and not the tenant in care for it to be effective.
Pursuant to Section 131 (1) BGB, a declaration of intent does not become effective until it is received by the legal representative of an incapacitated person.
In the case mentioned above, the Hanover Local Court had to decide on the validity of the termination of the tenancy of a mentally ill tenant who was under care and had behaved in breach of contract over a longer period of time. The tenant's culpability also had to be taken into account when weighing up the interests involved.
Facts of the Court Case
Tenant unable to conduct business repeatedly disturbs the peace of the house
Defendant 1) had been living with defendant 2) in the plaintiff's flat for some time.
According to the plaintiff, the defendant 1) repeatedly disturbed the peace of the house over a longer period of time. For example, on the night of 6 April 2013 and 7 April 2013, he repeatedly called the emergency service telephone of the pharmacy in the building and talked in a confused and rude manner.
He had rung the other tenants' doors at all times of the day and night, waking them from their sleep. Since the beginning of April, he had massively disturbed the peace and quiet in the house almost every day by insulting, frightening, bullying and threatening the residents.
Tenant shouts in the stairwell, insults and threatens other tenants
He had held loud conversations in the stairwell and had jumped at female residents in the stairwell, shouting loudly and looking crazy. He had also frequently spoken confused and impertinent things on the residents' answering machines. On 15.04.2013 and 22.6.2013, he shouted at children in the garden from his balcony.
He had thrown a dummy crow from his balcony onto the balcony of the neighbouring flat. On 27.04.2013, he attacked and injured a tenant. On 11 May 2013, he insulted and abused the sister of a tenant. On 25/06/2013, the defendant went on the rampage in the stairwell.
On 8 July 2013, he threatened the mother of a tenant that she should be careful and Heil should come down the stairs, he knew how to do this.
He also threatened, insulted and shouted at the tenant that day. On 14 July 2013, at 6.45 pm, he showed himself to an eleven-year-old child in the hallway wearing only his pants.
In the night from 16 July to 17 July 2013, he banged on the door of a tenant's flat. This continued until 2.00 a.m. in the night. From around 5.00 a.m., he sat in the garden and complained so loudly that the residents in the building were woken up.
On 17 July 2013, he aggressively approached a tenant in the stairwell and banged on the tenant's front door at around 9.30 pm, threatening her with the words "Come here, I'll punch you in the face!". He had nothing on his upper body.
On the night of 25 July 2013, at around 1:00 a.m., he was talking so loudly to himself in the courtyard that it woke up other tenants. He had also shouted in the courtyard asking if anyone was willing to lend him a phone.
At around 6.45 a.m., he loudly opened and slammed the flat door several times. On 26 July 2013, at around 9:15 a.m., he stood very close behind the glass pane of the flat door with his naked upper body and stared at another tenant, saying: "You will regret your behaviour!".
On 27 July 2013, he left the flat door open from around 7:00 a.m. and spoke very loudly to everyone who passed by. At around 6.00 pm, he stood on the balcony and swore loudly. During the night of 29.07.2013, he woke the neighbours four times with loud monologues.
Tenant calls other tenants "arsehole" and walks around naked
On the night of 4 August 2013, he opened the flat door when a tenant quietly entered the stairwell. He became loud when she did not want to answer his questions and loudly slammed his flat door shut, opened it again and insulted and abused the tenant. The term "arsehole" was used. He then rang the doorbell.
On 5 August 2013, at around 7.15 a.m., he had been walking around the stairwell lamenting loudly and had loudly slammed the front door. At around 2.00 pm, he opened the front door when the tenant had just walked past with her daughters and shouted after her that he was only wearing pants and that he was therefore a pervert.
At around 9.45 pm, he kicked the tenant's front door and rang the doorbell, attempting to enter the flat against the tenant's will. On 6 August 2013, he woke the residents at around 6.30 a.m. because he had been talking to himself very loudly while standing in the garden.
On 9 August 2013, he smeared ketchup on the door of the tenants' flat in the evening and also threatened other residents with the words: "It could also be your blood".
During the night of 9 August 2013 to 10 August 2013, the carer of defendant 1) fled from the flat. On that day, the police had the lock on the flat removed in order to take the defendant 1) into custody. The plaintiff had incurred costs of EUR 141.57 as a result. The replacement of the lock would also cost a further EUR 149.35. The tenants had reduced their rent for the month of August 2013 by EUR 86.82 due to the defendant's behaviour.
Because of this behaviour, the plaintiff sent the defendant 1) a reminder on 09.04.2013 and 11.07.2013. The reminder of 11 July 2013 was served on the defendant on 13 July 2013 and on the defendant's carer on 15 July 2013.
After issuing a warning, the landlord cancels without notice, or alternatively with notice
In a letter dated 18 July 2013, the plaintiff terminated the tenancy without notice. The notice of termination was delivered by email and by post on 18 July 2013 by placing it in the letterbox.
Defendant 1) had been undergoing inpatient treatment in a psychiatric ward since 12 August 2013. In a letter dated 16 September 2013, the plaintiff again terminated the tenancy without notice, or alternatively with notice.
The plaintiff based its termination on misconduct on the part of the defendant 1) as well as on rent arrears for the month of June 2013 in the amount of EUR 140.00 and the months of August and September 2013 in the amount of EUR 522.17 each.
The rent arrears were repaid in full by the defendants by 6 November 2013. Defendant 2) stated during the proceedings that she had left the flat and therefore requested that the action be withdrawn with regard to her personally.
After the defendants did not vacate the flat, the plaintiff filed an action for eviction with the court and based this action on the behaviour of defendant 1) in breach of contract and the accumulated rent arrears.
Ruling of the District Court of Hanover
The cancellation is effective despite the tenant's legal incapacity
The Hanover Local Court has now ruled that the tenancy was effectively terminated by the plaintiff's termination without notice on 16 September 2013 in accordance with Section 543 BGB.
The termination without notice issued in the letter dated 16 September 2013 was effective. The behaviour of the defendant (1) constituted good cause that entitled the plaintiff to terminate the contract without notice.
§ Section 543 (3) of the German Civil Code (BGB) does not require fault, but if the reason for termination is the breach of an obligation under the tenancy agreement, an unsuccessful warning is generally required.
Breach of contract does not require the tenant to be at fault
In the present case, the weighing up of the respective interests had led to the plaintiff no longer being able to be reasonably expected to continue the tenancy.
Defendant 1) had massively disturbed the peace of the house since April 2013. All witnesses had described in the interrogation that the defendant 1) massively disturbed the peace of the house.
Irrespective of whether the termination without notice of 18 July 2013 was already effective, this was at least a warning to the defendant. This was justified, as there had already been significant incidents beforehand.
The termination was also not late or forfeited. The notice of extraordinary termination without notice in accordance with Section 569 (1) sentence 1 BGB is not in itself bound by any deadline.
Source: District Court of Hanover
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