Cologne Local Court, 21 November 2014, Ref.: 208 C 151/14
Insult is regulated in § 185 StGB and defamation in § 186 StGB. They are therefore criminal offences. If a tenant insults or slanders the landlord, the landlord's representative, agent or employee, the caretaker or another resident, these are also breaches of the tenancy agreement that entitle the tenant to terminate the tenancy agreement if they reach a certain degree of severity and the assessment of the overall circumstances leads to the conclusion that the landlord cannot reasonably be expected to continue the tenancy agreement.
In the case discussed here, the Cologne Local Court had to decide on the termination without notice of a tenant who had threatened the caretaker that he would knock out his teeth.
Facts of the Case:
Landlord had cancelled the tenant's contract without notice due to threats of violence
The plaintiff was the landlord and the defendants had been tenants of a flat in Cologne since 1 June 2009, for which they paid a monthly rent of EUR 580 (of which EUR 100 was ancillary costs).
On 28 February 2014, the plaintiff's caretaker or his employees installed a new tap in the kitchen of the defendant's flat. The costs of EUR 221.34 were invoiced to the defendants by the caretaker on 5 March 2014.
Tenant allegedly threatened to knock out the caretaker's teeth
This was followed by a controversial telephone conversation between the caretaker and the defendant 1); the content of this telephone conversation is disputed, the caretaker claimed that the defendant 1) had said to him that he should no longer dare to enter the estate, otherwise he would smash his teeth in. Defendant 1) claims that he did not make such a statement.
The caretaker subsequently reported the defendant to the police and applied for a temporary injunction against him.
In a lawyer's letter dated 11 March 2014, the plaintiff also terminated the defendant's tenancy without notice, or alternatively with notice, due to the threat to the caretaker.
As the defendant did not move out, the landlady sued him for eviction at Cologne District Court
As the defendants still did not vacate the flat, the plaintiff sued the defendants for eviction and surrender of the rented flat and for payment of future compensation for use. The replaced fitting was the property of the defendant, so that the costs had to be paid by the defendant. The termination was also justified, as the caretaker had been threatened and the continuation of the tenancy was now impossible. There was also an interest in a declaratory judgement for the application under 2.), as the defendant under 1.) was indisputably in consumer insolvency, indisputably had no money and the decision of the City of Cologne only applied to payments up to November 2014. The defendants in turn claimed that there had never been a threat.
Judgement of the Local Court of Cologne:
Local court agreed with the landlord and ordered the tenant to vacate the property
The Cologne District Court followed the plaintiff's opinion and ruled that the plaintiff was entitled to a claim for eviction and surrender of the flat against the defendants pursuant to Section 546 (1) BGB.
The threat made by the defendant under 1) to the caretaker that he should no longer dare to enter the estate, that he would smash his teeth in, would constitute a reason for termination within the meaning of Section 543 (1) BGB, which would make a continuation of the tenancy appear unreasonable.
The court was fully convinced by the evidence that the aforementioned threat had been made.
Such a threat is also sufficient grounds for termination without notice. If a tenant threatens another tenant, the landlord or the landlord's caretaker with a criminal offence, a continuation of the tenancy is no longer reasonable, even without a further warning. It should also be taken into account that, according to the witness statements, the witness C took the threat so seriously that for a certain time afterwards he did not drive alone or at all to the houses in which the defendant 1) lived.
Threat justifies termination without notice, as continuation of the tenancy is unreasonable
In view of the nature of the threat, it was also irrelevant whether the defendants had actually been obliged to pay the invoice of witness C or not; even if this was not justified, this in no way justifies the considerable threat of the defendant 1). The defendant's assertion that the caretaker had insulted children did not indicate otherwise, as this statement was completely unsubstantiated. In view of the considerable threat, the granting of an eviction period also did not appear appropriate and should have been denied.
The plaintiff also has a claim against the defendants pursuant to Section 546a (1) BGB for payment of future compensation for use. There was an interest in legal protection for a future payment. As the defendant was indisputably in the process of personal insolvency and was himself indisputably unable to pay the rent, there was concern within the meaning of Section 259 ZPO that he would evade timely payment. The existing inability to pay would in principle justify this concern (see BGH WM 2003, 280 et seq.).
The fact that the public authorities could possibly provide compensation for the compensation for use depended on many circumstances, including the efforts of the defendant, and was therefore, in the opinion of the court, not to be taken into account in view of its uncertainty.
Source: Cologne Local Court
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