Charlottenburg Local Court, 30.01.2015, Ref.: 216 C 461/14
In principle, insults, defamation and threats against the landlord by the tenant constitute breaches of contract that can lead to extraordinary and/or ordinary termination of the tenancy.
With every termination, however, it must be checked in advance whether the tenant's breaches of contract reach a certain degree of severity and whether the assessment of the overall circumstances leads to the conclusion that the continuation of the tenancy agreement is unreasonable.
In the judgement of the Charlottenburg Local Court discussed here, the tenant had undisputedly insulted the landlord's employees, but since these insults were less serious and the insults had been preceded by a situation in which the landlord had also acted culpably, the terminations issued were nevertheless invalid.
Facts of the Case:
The plaintiff was the landlord and the defendants were tenants of a rented flat in an apartment block.
Tenants labelled manager as lazy
On 19 August 2014, the defendants described the property manager employed by the plaintiff and responsible for their residential complex as "lazy" in a fax letter addressed to the plaintiff.
On Facebook, the tenants labelled the landlady a wrecking ball with no agenda
From a homepage maintained by the plaintiff, a link leads to a Facebook page on which tenants of the plaintiff could leave reviews. The Facebook page contained numerous, in some cases vehement, complaints from other tenants. After a telephone call with an employee of the plaintiff, the defendants labelled this employee of the plaintiff as a "talentless wrecking ball" on the Facebook page.
Landlord cancelled without notice, alternatively with notice
In a letter dated 1 September 2014, the plaintiff then terminated the tenancy with the defendants without notice and alternatively with due notice and, when the defendants did not vacate the flat, filed an action for eviction at Charlottenburg District Court.
The defendants claim that despite their - undisputed - repeated complaints about the noise emanating from a garden area, they were unable to detect any activities by the property manager on site. In addition, the plaintiff's employee had shouted at them in an emotionally charged telephone conversation before the Facebook entry.
Judgement of the Charlottenburg Local Court:
The Charlottenburg District Court now ruled that the plaintiff could not demand that the defendants hand over the flat, as the tenancy in question had not been terminated either by the termination without notice or, alternatively, by the ordinary termination.
Local court did not consider insults to be serious enough
Neither the description of the plaintiff's employee as a "talentless wrecking ball" nor the description of the property manager as "lazy" authorised the plaintiff to terminate the tenancy without notice in accordance with §§ 543 Para. 1, 569 Para. 2 BGB.
According to Section 543 (1) of the German Civil Code (BGB), either party can terminate the tenancy without notice if there is good cause.
This would be the case if the terminating party could not reasonably be expected to continue the tenancy until the expiry of the notice period or other termination of the tenancy, taking into account all the circumstances of the individual case, in particular the fault of the contracting parties, and weighing up the interests of both parties.
According to Section 543 (2) No. 2 BGB, this is the case in particular if the tenant would significantly violate the rights of the landlord by seriously jeopardising the rented property by neglecting the care incumbent upon him.
An insult is a criminal offence and can also constitute good cause for termination if it is committed against the contractual partner. It is an attack on the honour of another person by showing disrespect or disregard, whereby mere rudeness is not sufficient.
In the present case, the court could ultimately leave open whether the two designations of the plaintiff's employees would fulfil the offence of insult pursuant to Section 185 StGB. In any case, they would have to be considered less serious in the spectrum of conceivable insults.
Landlord should have issued a warning beforehand
Therefore, a prior warning would have been necessary in this case. If the good cause consisted of a breach of an obligation under the tenancy agreement, termination pursuant to Section 543 (3) of the German Civil Code (BGB) is generally only permissible after the unsuccessful expiry of a reasonable period of time set to remedy the situation or after an unsuccessful warning. This does not apply if the immediate termination is justified for special reasons after weighing up the interests of both parties, Section 543 (3) sentence 2 no. 2 BGB.
It is recognised that this is regularly the case with serious insults. However, the situation is different in the case of one-off offences, which are not particularly serious in themselves and only become unacceptable when they are repeated.
These were two individual statements about different persons to different addressees. Ultimately, however, both statements were directly connected in time and were also based on the same facts, namely the noise from the garden area, which the defendants found very disturbing.
The term "lazy" also had a factual core - which the defendant considered to be correct and which the plaintiff disputed. Also, the term "talentless wrecking ball" would ultimately not be based primarily on a disparagement or on the announcement of disregard for the employee; this statement would also have a connection - perceived as true by the defendants - with an actual process, the conversation with the employee.
The court would not fail to recognise that such statements could in principle entitle the company to terminate the contract without notice; in the present case, however, a continuation of the contractual relationship would only be unreasonable if similar statements were repeated after a prior warning.
The tenancy had also not been terminated on the basis of the alternatively declared ordinary termination. The requirements for ordinary termination were not met.
According to Section 573 (1) sentence 1, the landlord can only terminate the tenancy if he has a legitimate interest in terminating the tenancy. Such a legitimate interest of the landlord in terminating the tenancy would exist in particular if the tenant had culpably breached his contractual obligations to a not inconsiderable extent (Section 573 (2) no. 1 BGB).
In addition, the termination offence under Section 573 (2) No. 1 BGB would require culpable behaviour on the part of the landlord, whereby the degree of culpability would be closely related to the materiality criterion.
Thus, there would be no significant breach of duty by the tenants
A corresponding culpable, not insignificant breach of duty would also not be present here.
Based on the fact that the designations would at best constitute insults in the lower spectrum of conceivable insults, the defendant's statements would not constitute a "not insignificant" breach of duty.
On the one hand, the fact that the statements were preceded by noise nuisance - which was undisputed between the parties on the merits and which the defendants found very disturbing - had to be taken into account.
Secondly, in view of the numerous complaints on the plaintiff's Facebook page, some of which were made in a very vehement tone, the defendants could have assumed that the plaintiff would not regard such statements as relevant to termination. This was all the more true as at least one of the statements quoted by the defendants also referred to a specific employee of the plaintiff.
Source: District Court of Charlottenburg
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