Berlin Regional Court, 19.01.2018, Ref.: 66 S 230/17
Pursuant to Section 543 (1) BGB, either party may terminate a tenancy without notice for good cause. Good cause exists if the terminating party cannot reasonably be expected to continue the tenancy until the expiry of the notice period or other termination of the tenancy, taking into account all circumstances of the individual case, in particular the fault of the contracting parties, and weighing up the interests of both parties. According to paragraph 2 of Section 543 BGB, good cause exists in particular if the tenant is not granted or is deprived of the contractual use of the rental property in whole or in part in a timely manner, the tenant thereby violates the rights of the landlord to a considerable extent, the tenant significantly endangers the rented property by neglecting the care incumbent upon him or leaves it to a third party without authorisation or the tenant is in arrears with the payment of the rent or a not insignificant part of the rent for two consecutive dates or is in arrears with the payment of the rent in an amount equal to the rent for two months in a period extending over more than two dates.
According to 543 Para. 2 No. 2 BGB, the landlord can therefore also terminate the tenancy agreement if the tenant significantly violates the rights of the landlord by seriously jeopardising the rented property by neglecting the care incumbent upon him. Whether the landlord's rights have been violated to a considerable extent must be assessed according to the severity and frequency of the breach of contract. An indication of this may be how the landlord has behaved in comparable situations in the past. When interpreting this legal term, it must be taken into account that a "culpably not insignificant" breach of duty is already grounds for ordinary termination in accordance with Section 573. This shows that the breach of duty meant here must be particularly serious.
The tenant must have continued to use the property in breach of the contract despite a warning to this effect. Termination is also possible against a tenant who has acted without fault. However, the interests of both parties, which are protected by fundamental rights, must be weighed up.
In the following case, the Berlin Regional Court had to decide whether the extraordinary termination of a tenant's lease due to littering and soiling of the flat was permissible and whether the tenant had been given sufficient warning beforehand. As a result, it assumes that such soiling justifies termination and confirms the findings of the local court. In doing so, it states that in accordance with Section 286 (1) ZPO, it is to be decided on the basis of free judgement whether the court considers a factual assertion to be true or untrue. In doing so, the laws of reasoning and nature, the principles of experience and the statutory rules of evidence must be observed. The judge must assess the findings obtained in the course of the legal dispute according to his individual judgement. In particular, when determining whether the tenant received the landlord's warning notice, the judge may be guided by credible witness testimony, even if the witness no longer remembers the exact date of delivery. If she can credibly explain what the circumstances of such a delivery were, this is sufficient to form a conviction.
Facts of the Case:
Tenant had soiled flat with faeces, dirt, waste and food scraps
The Tempelhof District Court had ordered the defendant to vacate and hand over his rented flat. The local court found that the plaintiff's termination without notice on 23 January 2017 had ended the tenancy between the parties.
Tempelhof District Court sentenced tenant to eviction - tenant appeals
The cancellation was formally proper, namely in writing in accordance with § 568 Para. 1 BGB and sufficiently justified within the meaning of § 569 Para. 4 BGB. The reason for the termination was that the defendant had soiled the flat to a large extent with faeces, dirt, waste and leftover food. The plaintiff appealed against this judgement.
Judgement of the Berlin Regional Court:
The Berlin Regional Court issued a decision stating that it intended to reject the appeal by unanimous decision due to a lack of prospects of success in accordance with Section 522 (2) sentence 1 ZPO. Although the appeal was admissible, the required minimum complaint pursuant to Section 511 (2) ZPO had been met and the formal and deadline requirements of Sections 517, 519 and 520 ZPO had been observed, the appeal clearly had no prospect of success
Regional court confirms decision - cancellation is effective
The termination did not lack a sufficiently substantiated presentation of the grounds for termination. The plaintiff had described the condition of the rented property comprehensively and in great detail. The extent and nature of the soiling had been sufficiently explained.
Like the Local Court, the Chamber assumes that there is good cause for termination without notice within the meaning of Section 543 (1), (2) sentence 1 no. 2 BGB. The flat was considerably jeopardised by neglect of the care incumbent on the defendant. The defendant had not sufficiently disputed the condition, which was clearly recognisable in the photos submitted. Any attempts, such as that the dirt was caused by entering the bathroom with street shoes, were implausible.
The soiling constitutes a hazard to the rented property, which entitles the tenant to terminate the lease
The defendant had breached the duty of care incumbent upon him by not treating the flat with care, but by soiling it to a considerable extent with faeces, dirt, waste and leftover food. This constitutes a risk to the rented property, which exists if it has already been damaged by the breach of the duty of care or if the occurrence of damage is significantly higher than in the case of behaviour in accordance with the contract.
The breach of contract was so serious that the cancellation was justified.
The condition of the flat was no longer acceptable and the substance of the house and the health of the other residents were directly jeopardised. The condition was no longer seen as merely untidy or in need of cleaning, but as an attack on the substance of the rented property.
In particular, damage to the toilet bowl and cistern is still visible despite the cleaning that has now been carried out.
Large amounts of faeces and leftover food were left in the flat for a long time
The decisive factor for the court's decision was that the undisputedly large amounts of faeces and leftover food in the flat over a long period of time formed an ideal breeding ground for vermin and thus posed a risk that this would spread throughout the entire house. It seems obvious to the Chamber that such large areas of faeces and leftover food in the flat led to the development of odours into the hallway, at least in the summer months.
The defendant had also culpably brought about this condition. A proven depressive disorder does not change this. This occurs episodically. In "normal" phases, the defendant was able to write a letter to the district court himself to indicate his willingness to defend himself and to visit the social housing assistance at the district office, the job centre and a support facility for "messies" in order to get help. During these phases, he was therefore also able to clean and tidy his flat or at least get help with the tasks.
Tenant did not clean the flat even after the warning, but continued to live there
It is particularly serious that the defendant remained inactive even after receiving the warning on 1 August 2016, although he was clearly made aware of the untenable condition of his flat.
In addition, the termination was preceded by a further warning dated 29 July 2016 within the meaning of Section 543 (3) sentence 1 BGB.
The local court had correctly assumed that the defendant had also received the warning. A witness had been heard in this regard. Pursuant to Section 529 (1) No. 1 ZPO, the Chamber must base its hearing and decision on these findings, unless there are concrete indications that cast doubt on the accuracy or completeness of the findings relevant to the decision and therefore require a new finding.
It is necessary to examine whether the court of first instance's assessment of the evidence is incomplete or contradictory, whether it violates the laws of reasoning or the principles of experience or has disregarded essential parts of the evidence and whether a proper assessment of the evidence has taken place. Such violations were not apparent.
Even though the witness stated that she no longer remembered the specific day and circumstances of the delivery, she was nevertheless able to make specific reference to the proof of delivery of 1 August 2016 that she had prepared herself. She had explained how and when this proof of service had been completed.
The Local Court was entitled to infer service within the meaning of Section 286 (1) ZPO from the description of the procedures, the entry on the proof of service here and the witness's statement that she does not post letters in damaged letterboxes or letterboxes not labelled with the tenant's name.
This is because, according to Section 286 (1) ZPO, it must be decided on the basis of free judgement whether the court considers a factual assertion to be true or untrue. In doing so, the laws of reasoning and nature, the principles of experience and the statutory rules of evidence must be observed. The judge must assess the knowledge gained in the course of the legal dispute according to his or her individual judgement. The judge's personal certainty is sufficient, which must silence doubts without completely excluding them. Objective truth is to be strived for, but must not be the sole yardstick.
The grounds of appeal are not able to shake the judicial conviction. The lack of prospect of success was obvious; in particular, there were no new aspects to be considered in the appeal. There were no disputed legal issues or fundamental importance. Further grounds for appeal were also not apparent. An oral hearing was not required, section 522 (2) sentence 1 ZPO.
The Court of Appeal further stated that it intended to grant the defendant an approximately four-month eviction period due to his illness and the long duration of the tenancy, Section 721 (1) ZPO. The plaintiff's interest in regaining possession of the flat as soon as possible no longer took priority due to the basic cleaning of the kitchen and bathroom carried out by the defendant.
The defendant was given the opportunity to comment and withdraw the appeal.
Source: Berlin Regional Court
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