Termination of a residential tenancy, implied termination by filing a lawsuit
In a legal dispute concerning rent arrears and eviction from living space, the Regional Court of Essen had to decide in the second instance on the validity of a termination without notice and the question of an implied termination by filing an action for eviction.
The parties are bound by the tenancy agreement dated 12.04.2010, under which the plaintiff rented an apartment on the first floor of her house to the defendant. The tenancy began on 01.05.2010. The monthly rent was € 450.00 plus € 150.00 in advance for operating costs. A security deposit of € 900.00 was agreed.
The plaintiff claimed that the defendant had only paid € 300.00 too little for the deposit and € 100.00 too little for the rents from November 2010 to May 2011. She therefore gave him notice of termination without notice, or alternatively with notice, in a letter dated 23.05.2011. As the defendant paid the rent in full in the following months, she withdrew the termination.
The plaintiff further claimed that the defendant only paid € 480.00 for September 2011 and no rent at all for October 2011. From November 2011 to February 2012, the defendant again only paid € 480.00 in each case and no rent at all in March 2012. From April to August 2012, only € 480.00 was paid in each case. Adding the remaining amount from the outstanding deposit and an unpaid additional operating cost claim for 2010 of € 9.68, this resulted in a total arrears of € 3,709.68. The rents for November 2010 to January 2012 and the outstanding deposit have already been enforced.
In the present legal dispute, the plaintiff has claimed rent arrears for February 2012 and April to July 2012 in the amount of € 600.00.
In a letter dated April 2, 2012, the plaintiff again terminated the tenancy agreement with the defendant without notice and – based on this – filed an action for eviction.
The defendant denied having received the notices of termination dated 23.05.2011 and 02.04.2012. Furthermore, the notices of termination – if they had been received – were invalid because they were not issued by the plaintiff but by a company, D. Hausverwaltung, which had no power of attorney.
The plaintiff replied that the company named was her property management company. At the same time, she submitted a corresponding power of attorney dated 23.05.2011
In addition, the defendant complained of defects which the plaintiff disputed. To prove this and the assertion that he had also complained about these defects to the plaintiff, he offered his own testimony.
The local court upheld the claim. The claim for payment arose from Section 535 (2) BGB, as the defendant was indisputably in arrears with the amount claimed. His submission regarding defects was unsubstantiated and not proven. Termination without notice was also justified due to default of payment. The fact that the property management company was entitled to terminate the contract was evident from the power of attorney submitted. Moreover, it was irrelevant whether the defendant had received the notices of termination dated 23.05.2011 and 02.04.2012, as a new notice of termination without notice was included in the statement of claim at the latest.
The defendant’s appeal is directed against this and he repeats and expands on his arguments at first instance.
B. Decision
(implied termination)
I.
The defendant’s appeal, which is admissible pursuant to Section 511 (1) ZPO and admissible pursuant to Sections 511 (2), 517, 519, 520 ZPO, is partially justified and leads to the contested decision being amended to the extent recognized.
1. the plaintiff has a claim to rent arrears pursuant to Section 535 (2) BGB. The payment claim is undisputed in terms of reason and arithmetical amount.
The defendant is not entitled to a reduction claim pursuant to Section 536 (1) BGB due to defects in the rental property. It is irrelevant whether the factual submission in this regard, in particular regarding the notification of defects, is sufficient and whether defects worthy of reduction have been presented at all. This is because the facts are disputed by the plaintiff and have not been properly substantiated by the defendant.
A party hearing pursuant to Section 477 ZPO can only be considered if the other party agrees. The plaintiff has not consented and is not expected to do so.
There are no sufficient connecting facts for a party hearing ex officio pursuant to Section 448 ZPO.
The claim for interest follows from §§ 286 Para. 2 No. 1, 288 Para. 1 BGB.
2. on the other hand, there is no right to eviction and surrender pursuant to Sections 546 (1), 985 BGB. It presupposes the termination of the tenancy, as there is then no longer any right to possession within the meaning of Section 986 (1) sentence 1 BGB. The plaintiff bases her claim in this respect on the termination without notice of April 2, 2012, which is, however, invalid. The disputed receipt of this termination is not relevant in the end because the receipt of the termination – unlike the termination of 23.05.2011 – has not been proven.
However, the receipt of the notice of termination is also irrelevant because, in accordance with Section 569 (4) BGB, the important reason leading to the termination must be stated in the letter of termination. This also applies to notices of termination pursuant to Section 543 (1) and (2) BGB (Blank in: Schmidt-Futterer, Mietrecht 11th edition (2013), Section 569 BGB with further references). In the present case, the termination is based on default of payment within the meaning of Section 543 (2) no. 3 b) BGB. No such justification can be inferred from the letter of termination dated 02.04.2012 that is the subject of the dispute. The termination letter does not contain any justification for the termination without notice. As a result, a termination without notice in a residential tenancy is invalid if the reasons for the termination are either not stated at all – as in this case – or only incompletely (Blank in: Schmidt-Futterer, Mietrecht 11th edition (2013), § 569 BGB Rdn. 82).
Contrary to the opinion of the local court, the statement of claim does not contain a declaration of termination.
The termination can also be declared in the statement of claim or another written submission to the court. However, the filing of an action does not in itself constitute an (implied) declaration of termination. Nor is it sufficient if the claim for eviction is substantiated or explained in written submissions to the court or if new grounds for termination are asserted there. Rather, for reasons of legal certainty, the pleading must contain a declaration that the recipient can undoubtedly understand as a substantive declaration of termination. This would be the case if the party clearly expressed that the procedural act was not merely intended to enforce a termination that had already been declared out of court. (BGH judgment of 06.11.1996-XII ZR 60/95- [NJW-RR 1997, 203 f.] with further references; BayObLG legal decision of 14.07.1981 -Allg. Reg 32/81- NJW 1981, 2197 ff.]; Blank in: Schmidt-Futterer, Mietrecht 11th edition (2013), § 542 BGB Rdn. 19 with further references).
As a rule, such an intention on the part of the landlord can only be inferred if – as in this case – notice of termination has already been given prior to the proceedings, if the landlord relies on new grounds for termination or other circumstances when bringing an action or making a further procedural declaration for his eviction claim, which make the renewed termination appear promising from his point of view in the event that the first termination should have been ineffective. (BGH judgment of 09.07.2003 -VIII ZR 26/03- [NJW 2003, 3265 ff.]).
The present statement of claim expressly refers to the pre-litigation notice of termination of 02.04.2012 without indicating that it should contain a further notice of termination. In this respect, the plaintiff’s attorney of record did not make any such declarations in the name of and on behalf of the plaintiff. (LG Berlin judgment of 16.05.1995 -64 S 403/97- [ZMR 1995, 354 ff.]; LG Osnabrück judgment of 21.12.1990 -11 S 421/90- [WuM 1991, 690]).
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