Hamburg-Wandsbek Local Court, 14/03/2019, Ref. 713 C 270/18
According to the German Civil Code (BGB), the ordinary termination of a tenancy agreement for a flat requires a legitimate interest in the termination of this tenancy agreement. Such a legitimate interest exists, for example, if the tenant breaches their contractual obligations or the landlord needs the flat for themselves or a family member. However, it is not always clear when the landlord's interest in terminating the tenancy is still justified. If the rent is not paid or the flat itself is damaged, this can simply be affirmed. However, it is difficult to say for sure whether this also includes celebrating loud parties or throwing objects from the balcony. It must always be borne in mind that the tenant is normally dependent on the flat to keep a roof over their head. Not every minor offence should lead to the loss of the flat.
In the following judgement, the Hamburg-Wandsbek District Court clarified that the repeated celebration of loud parties in conjunction with the throwing of furniture from the balcony, which endangers other flats and tenants, can constitute grounds for termination. In such a case, the landlord is deemed to have a legitimate interest in terminating the tenancy.
Facts of the Case:
Landlady terminated tenant's contract without notice and in due time because of a drug party
In this case, the parties are in dispute about the validity of several cancellations of a tenancy agreement. It also concerns the payment of pre-litigation legal fees and the back payment of ancillary costs. The plaintiff is the landlord and the defendant is the tenant of the flat.
On 11 July 2018, the tenant is said to have organised a drug party in the flat, whereupon the landlady terminated his tenancy on 2 August 2018 without notice, or alternatively with notice.
Another cancellation because furniture and objects were thrown off the balcony at a party
She gave him notice to quit again on 6 November 2018 after the police visited the tenant on 4 November 2018 because furniture and objects had been thrown off the balcony at another party in the flat.
On 8 January 2019, the landlady gives notice for a third time because the tenant is alleged to have sublet the flat without authorisation.
After these notices of termination were issued, the landlady has now filed a lawsuit requesting that the tenant be ordered to vacate and return the flat in the condition stipulated in the contract. She also wants him to reimburse her pre-trial legal fees of € 564.66.
It is also requesting that the tenant be ordered to pay additional service charges from 2017 in the amount of €54.47.
The tenant, on the other hand, rejects all allegations and therefore demands that the action be dismissed. With regard to the grounds for termination, he claims that he was not present at the alleged drug party himself, but rather that an acquaintance commissioned to water the flowers abused his trust and organised the party. He also claimed that he had not thrown any furniture off the balcony, but had deposited it next to a rubbish container. Finally, he had not sublet the flat, but had only received short-term visits.
Judgement of the Hamburg-Wandsbek Local Court
Local court considered the landlady's eviction claim to be valid
The Hamburg-Wandsbek District Court partially upholds the claim. It orders the tenant to vacate the flat and hand it over to the landlord. It justifies this by stating that the tenancy was effectively terminated on 28 February 2019 with the termination of 6 November 2018 within the meaning of Section 546 I BGB. § Section 546 I BGB was terminated. The court sees the "legitimate interest" required for termination in accordance with Section 573 I 1 BGB in the culpable and not insignificant disturbance of domestic peace by the tenant.
However, the court does not see the disturbance of the peace of the house in the loud drug party on 11 July 2018, as it cannot be proven that the tenant organised or tolerated the party.
In particular, the throwing down of the furniture had significantly disturbed the peace of the house
Rather, it sees the disturbance of the peace of the house in the party on 4.11.19, at which the tenant's neighbours were disturbed with loud music and furniture was thrown down from the balcony. The witnesses M. and S. had observed this. The court is convinced that a clothes horse and several chairs were thrown. It sees such behaviour as a potential danger to the fabric of the house and the neighbours, especially as the objects landed just a few centimetres from the windows of the others. The court also found that the tenant had no right to litter the communal areas of the residential complex. In addition, it considers it likely that such disturbances will continue in the future. The termination of 6 November 2018 is therefore effective.
The landlord could therefore also demand reimbursement of the legal fees
However, as the termination of 2 August 2018 was invalid, the landlord cannot demand reimbursement of her pre-trial legal fees of € 564.66.
In addition, she can only demand payment of the service charges from 2017 in the amount of €41.50 (instead of the desired €54.47), as the service charge statement only shows this amount.
Source: AG Hamburg-Wandsbek
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