Berlin Regional Court, 24/09/2014, Ref.: 65 S 64/14
The other contracting party must always be notified of the cancellation under tenancy law in writing, Section 568 BGB. This means that it must be declared in a signed and justified letter.
Particular caution is required if the notice of termination is given by an employee of a company acting as landlord or by another authorised representative, such as a lawyer.
In the above-mentioned judgement of the Berlin Regional Court, the court had to decide on the validity of a dismissal declared by an employee of a stock corporation.
Case Overview
Clerk of the landlord company cancels tenants due to late payment
The plaintiff in this case was the landlord, a public limited company, and the defendants were the tenants of the rented flat. Due to late payment of the rent, an employee of the plaintiff was assigned the task of collecting the overdue amount. This clerk worked in the plaintiff's receivables management department.
When payment was still not made, the officer responsible for debt collection terminated the tenancy by giving notice of termination without notice on 7 May 2013.
Clerk does not send power of representation for the cancellation
Although the clerk was stated on the letterhead of the cancellation notice as the person responsible for collecting outstanding rent claims, his power of representation with regard to the cancellation of rental agreements was not evident from this.
Clerk signs with addition i. A.
The clerk had signed the cancellation with the addition "i. A." When the defendant did not vacate the flat, the plaintiff initially filed an action for eviction with the Neukölln district court.
The plaintiff appeals against the dismissal of the action by the Cologne Local Court
As the Neukölln Local Court had dismissed the claim, the plaintiff finally lodged an appeal with the Berlin Regional Court.
Appeal judgement of the Berlin Regional Court
Berlin Regional Court confirms judgement of the local court - termination invalid
The Berlin Regional Court followed the opinion of the Local Court and also ruled that the plaintiff was not entitled to the return of the flat rented by the defendants in accordance with Section 546 (1) BGB because the tenancy of the parties had not been terminated by the termination without notice of 7 May 2013.
In the opinion of the Regional Court, the question of whether a declaration was made in the name of a third party generally depends on the objective value of the declaration. According to §§ 133, 157 BGB, the decisive factor is how the recipient of the declaration may understand the declaration in good faith, taking into account common usage.
In addition to the wording of the declaration, all circumstances that would allow conclusions to be drawn about the meaning of the declaration, taking into account customary practice, must be taken into account. Of particular importance are the circumstances underlying the legal relationship, the interests involved, the business sector to which the subject of the declaration belongs and typical behaviour in the trade.
The statutory written form of Section 126 of the German Civil Code (BGB) is only complied with if the intention to represent the legal transaction determined in this way is expressed in the document, at least in an implied manner.
If a declaration has been signed with the addition "i. A.", this may indicate in individual cases that the signatory does not wish to assume responsibility for the content of the declaration signed by him/her, acting as a representative.
However, when interpreting the declaration in accordance with §§ 133, 157 BGB, it must be taken into account that in general, non-legal linguistic usage, a sufficient distinction is not always made between "mandate" and "representation". The additions "i.V." and "i.A." are often only used to express different hierarchical levels. Therefore, it does not follow from the addition "i.A." alone that the declarant has only acted as a messenger and not as a representative.
Rather, the overall circumstances are decisive. If it is clear from this that the signatory has made the declaration on behalf of another person, it must be assumed that they are acting as a representative. Whether the signatory was actually authorised is irrelevant for compliance with the written form requirement.
In the present case, the relevant letter of termination dated 7 May 2013 was written on the letterhead of the stock corporation identified in the rental agreement as the representative of the landlord. As the AG cannot act as a legal entity itself, it is represented by law by the Management Board, Section 78 (1) AktG. Accordingly, the members of the Management Board, Mr # and Mr #, were named on the letter of termination, but did not sign the letter of termination.
The letter of termination dated 7 May 2013 was signed by a Mr #, whose name was listed at the top of the letter under the reference "Claims Management" and whose email address was given next to the file reference as the contact address. The other signature was from a person named "#" who was not further individualised.
Mention of the person in charge on the letterhead does not indicate that he is authorised to represent the company
The mention of the signatory # in the letterhead does not indicate his power of representation. In accordance with the design of the incoming tenancy agreement, the "contact person" is named at this point in the letter, i.e. the person responsible for collecting outstanding rent claims. It could not be inferred from this that this person was responsible for submitting declarations of intent relating to the existence of the tenancy. Nor had the plaintiff submitted any facts from which the defendants could recognisably infer that the signatory Mr # had corresponding legal authority.
The notice of termination was written in the "we-form" ("we terminate the... tenancy", "we request you to ... hand over the flat to us", "we ... pronounce our landlord's lien"...).
Finally, after the greeting and before the signatures, the addition "In the name and on behalf of the landlord" was added. This is followed by the two signatures # and #, both of which are preceded by the abbreviation "i.A.".
The use of the 2nd person plural in the letter of termination was a formulation indicating the plaintiff as landlord, because rights were asserted in relation to termination, return and landlord's lien, to which the landlord was entitled.
Since no reference to the landlord was made at the beginning of the notice of termination, the necessary disclosure of the agency relationship and the acting on behalf of a third party was made at the end of the greeting formula. This could - as stated by the plaintiff in the appeal - be interpreted as an indication that the signatories were acting with power of attorney precisely because of this proximity to the declaration of the natural persons, the signatories.
In the present case, this conclusion could not be drawn. Firstly, the signatories were not acting directly on behalf of the landlord; rather, there was a chain of authorisation here, because by using the letterhead of # AG, this representative was the issuer of the letter of termination. Furthermore, in accordance with the legal situation, the representatives of # AG, the Management Board authorised to represent the company, were named. However, the additional use of the abbreviation "i.A." for both signatures relativises the preceding addition "in the name and on behalf of the landlord" for an objective recipient of the declaration.
Use of i. A. does not indicate an agency relationship
This is because the typical use of "i.A." would not indicate a representative relationship, but the person signing with this abbreviation does not want to make his own declaration, but only wants to transmit a third-party declaration.
It is in accordance with the case law of the highest courts that in cases in which the signatory - in the case in question it was a matter of signing a notice of appeal - adds the word "i.A." to his signature, it cannot be assumed that the signatory is responsible for the content of the notice of appeal; rather, he thereby indicates that he is merely acting as a messenger. In the case in question, the Federal Court of Justice had ultimately affirmed the admissibility of the appeal because the lawyer signing with this addition was a member of the law firm and was listed on the letterhead of the law firm with which the notice of appeal was submitted. Applied to the present case, this would mean that if one of the board members listed on the letter of termination had signed with the abbreviation "i. A.", this would be harmless because he was identified on the letter as authorised to represent the company.
I. A. contradicts the initial formula "in the name and on behalf of the landlord"
The addition of these abbreviations "i.A." would thus contradict the preceding addition "in the name and on behalf of the landlord". From a realistic point of view, this addition should be understood to mean that # AG is acting "in the name and on behalf of the landlord" and therefore intends to comply with the required principle of publicity. The signatories on the abbreviation "i.A.", on the other hand, would indicate that they were only authorised to give notice of termination.
As already explained by the chamber in the judgement of 22 March 2011 - 65 S 363/10 - cited by the plaintiff, this addition creates a distance to the declaration, which was to be made here "in the name and on the authority of the landlord". If the signatories had actually been authorised or had wanted to act as representatives, what could have been more obvious than to sign without any addition under the addition "in the name and on behalf of the landlord".
The fact that the addition "i.A." had not been added by hand, but had obviously already been applied to the letters before they were signed, did not change this assessment.
# AG is a professional representative of a landlord that has been active on a large scale in Berlin for years and is known in court. It could be expected to know the difference between representation and commissioning. Furthermore, as both letters of cancellation were drafted accordingly, it could not be assumed that this was a one-off oversight. Rather, this leads to the conclusion that representation of the signatories cannot be assumed here.
The fact that the rental agreement had proceeded accordingly by adding "i.A." to the signatures did not lead to a different assessment. In each case, different persons had acted on behalf of the plaintiff or its representative, # AG, so that from the recipient's point of view, it could not be concluded from this procedure that the signatories to the termination were authorised to make declarations concerning the existence of the tenancy. Furthermore, the plaintiff had not submitted that it had signed all contracts in the form used here.
Finally, the plaintiff had not submitted any concrete factual circumstances from which it would have been possible for the defendants, as recipients of the declaration, to conclude that the signatories were authorised to represent the company. No further pre-litigation correspondence had been submitted, nor had any further factual submissions been made in this regard, as was the case in the 2007 decision of the Federal Labour Court cited by the plaintiff.
The person who had pre-formulated the notices of termination at # AG and prepared the written notice of termination for signature had - as in the case of the rental agreement - not drafted this independently, but on instruction in this form.
This would have required concrete factual evidence. For example, how this was organised at the plaintiff or # AG and in what form letters had previously been sent to the defendants. However, the plaintiff had failed to do so, regardless of the requirements it had cited from case law, so that there was no indication that the plaintiff would usually present representation relationships in this form.
With regard to the notices of termination contained in the statement of claim, the appeal merely complains that the local court considered the termination without notice contained in the claim to be invalid pursuant to Section 569 (3) No. 2 BGB because this termination was preceded by the termination without notice of 11 January 2012, which also became invalid pursuant to Section 569 (3) No. 2 BGB, so that Section 569 (3) No. 2 sentence 2 BGB would apply.
This view was not correct. The termination without notice of 11 January 2012 submitted with the complaint was drafted in the same way as that of 7 May 2013 and was also signed by Mr # and an unidentified person named #, in each case with the addition "i.A.". In this respect, reference can be made to the above statements on the termination of 7 May 2013, with the result that the termination of 11 January 2012 is also formally invalid.
Source: Berlin Regional Court
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