Federal Court of Justice, judgement of 4 May 2011, Ref.: VIII ZR 146/10
Pursuant to Section 259 ZPO, an action for future performance can generally be brought if there is a concern under the circumstances that the debtor will evade timely performance.
The claim need not be based on malice or negligence; a serious denial by the debtor is sufficient.
Furthermore, the claim must not only arise in the future, but must rather find its basis in a legal relationship whose legal facts have already occurred.
In the above-mentioned decision, the BGH now had to decide whether a landlord could also sue for future compensation for use in connection with an action for eviction due to long-term non-payment of rent.
Although this possibility had already been confirmed by the BGH in the Senate decision of 20 November 2002 (VIII ZB 66/02, NJW 2003, 1395), it has now been presented again for decision.
Facts of the Case:
The defendants had been tenants of one of the plaintiff's flats since October 2004.
The defendants did not pay the rents for the months of December 2006, October 2007 and September 2008, which were due for payment on the third working day of the month at the latest.
Due to this rent arrears, the legal predecessor of the plaintiffs declared extraordinary termination of the tenancy without prior warning to the defendants and demanded that the flat be vacated and surrendered by 31 December 2008 at the latest.
After being requested to do so by the plaintiffs' legal predecessor, the defendants paid the rent for September 2008 including the ancillary costs (€ 470); however, no further payments were made.
The plaintiffs, as legal successors to the original plaintiff, filed a claim against the defendants for payment of the rent still in arrears, compensation for use for the period after the cancellation, and also for eviction and surrender of the flat.
Plaintiffs sought not only eviction but also payment of future compensation for use
Furthermore, the plaintiffs requested that the defendant be ordered to pay the plaintiffs compensation for use in the amount of the rent paid to date from February 2009 until the flat is completely vacated and handed over.
The local court upheld the claim, against which the defendants appealed insofar as they had been ordered to vacate the property and to pay a monthly compensation for use in the future.
Court of Appeal rejected payment of future compensation for use
The Court of Appeal followed the view of the defendant on the grounds that the action for payment of future compensation for use was inadmissible as the requirements of Section 259 ZPO were not met.
The defendants had neither seriously disputed the justification of the plaintiffs' rent claims, nor were there any indications of a permanent inability to pay on the part of the defendants.
In particular, the non-payment of three months' rent within a period of three years did not indicate that the defendant was unable to pay.
Appeal judgement of the Federal Court of Justice
BGH considers claim for future compensation for use to be justified
Contrary to the opinion of the Court of Appeal, the BGH considered the claim for future payment of rent or compensation for use to be admissible and justified.
Pursuant to Section 259 ZPO, an action for future performance can be brought if there is reason to fear that the debtor will evade timely performance.
The concern that the defendants would not pay on time would already exist in the case in dispute because, on the basis of the judgement by the district court to pay the overdue amounts, which the defendants did not contest on appeal, it was legally established that the defendants owed the plaintiffs this amount.
However, if the defendants have accumulated an arrears of rent and ancillary rental costs in an amount that exceeds the gross monthly rent several times over, it is to be feared that the defendants will not fulfil the plaintiffs' future claims for compensation for use in good time, irrespective of whether they relate to rent or compensation for use.
Source: Federal Court of Justice
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