GbR WG – termination of the rental agreement by a WG member
In its decision of 22.02.2021 – case no. 7 O 196/18 – the Regional Court of Cologne ruled on a lawsuit regarding the termination of the tenancy agreement by two flatmates. The defendant flatmate refused to agree to the termination of the tenancy agreement.
Facts (termination of rental agreement; GbR WG)
The plaintiffs are seeking the defendant’s cooperation in terminating the rental apartment they once occupied together.
The defendant rented initially rented the apartment referred to in the operative part together with two other tenants under a rental agreement dated 14.07.2009. Also with Rental agreement dated 03.01.In 2014, the defendant initially rented the apartment together with other tenants. Under the 10.10.In 2016, the parties agreed an addendum to the rental agreement with the landlord from the 03.01.2014. In this agreement, the parties declared the plaintiffs’ accession to the rental agreement on the tenant side (§ 1 of the supplementary agreement). In accordance with § 2 of the supplementary agreement, the rent for the apartment is EUR 850.00 plus. 150,00 EUR additional costs. With regard to the wFor further details, please refer to the addendum to the rental agreement (BI. 12 d.A.) is referred to.
In the fall of 2017, the plaintiffs intended to leave the apartment in dispute. The landlady was not prepared to accept the plaintiffs’ notice of termination, as the landlord was of the opinion that a partial termination, as pronounced by the plaintiffs, was not sufficient. The plaintiffs therefore demanded that the defendant , to terminate the tenancy together with them. However, the latter informed them by letter dated 24.11.2017 with, that she does not intend to resigniing. Further attempts by the plaintiffs, the Defendant to submit the declaration of termination to move, failed.
Plaintiff 2) moved out of the apartment on 28.02.2018.
The defendant was then informed by letter from a lawyer dated 02.03.2018, again setting a deadline, to terminate the rental apartment together with the plaintiffs, to which the defendant did not respond.
On 12.03.2018 the plaintiff 1) moved out of the apartment. The defendant still lives in the apartment today.
Applications for relief:
The plaintiffs request, among other things, that the defendant be ordered to jointlyterminate the existing tenancy agreement for the apartment in writing to the landlord at the earliest possible date.
The defendant is of the opinion that such consent on its part does not lead to the plaintiffs leaving the tenancy, as in its view previous roommates who have already moved out would also have to give their consent. The defendant bases this on the fact that, in its view, they had never left the tenancy.
Reasons for the decision:
The complaint is admissible and well-founded.
There are no concerns with regard to the general admissibility requirements of the action. In particular, the Regional Court of Cologne has jurisdiction. The court is authorized by the Verweisungsbeschluss des Amtsgerichts Köln sachlich zuständig geworden § 281 Abs. 2 S. 4 ZPO.
The plaintiffs have a claim under section 730 para. 1 BGB there, that the defendant together with them with regard to the apartment described in more detail in the operative part the landlord at the earliest possible date, d. h. in compliance with the statutory period of notice, submits a written declaration of termination.
Because if one of the tenants or landlords is not prepared to give notice of termination, he can demand cooperation from the parties wishing to terminate the contract in the event of a termination.igation in be utilized (Schmidt–Feeders/Blank, 13. Edition. 2017, BGB § 542 Rn. 44). In detail:
By jointly renting the apartment in dispute, the plaintiffs and the defendant formed a civil law partnership under German law..S.d. § 705 BGB . When several People one Sign a rental agreement, d. h. rent an apartment together, lies between them as a tenanttcommunity a BGB–Company (Emmerich-Sonnenschein, Rent, Preliminary. §§ 535, 536 BGB, Rn. 57, 55). The approach they advocatelpurpose of the company is, to enable them to live together in the jointly rented apartment. Jointly owned company assets are also given , because this includes the joint right to use the apartment.
Gem. §Section 723 BGB, any shareholder may terminate the company at any time.igen, if the company is not held for a certain period of time received is. The company is dissolved by the termination of a shareholder and is liable pursuant to Art. § SECTION 730 BGB to unwind. Each shareholder is entitled to the execution of this settlement, if the company is dissolved is (cf. OLG Hamm, judgment. from the 22.08.2005 – 8 U 189/04). From this results in itself The tenants also have a claim against the other tenant for consent to the joint terminationigof the jointly rented apartment (cf. also LG Hamburg, Judgement. v. 12.11.1992, Az.: 332 0 338/12). Because if the shareholders are jointly a Tenancy entered into, belongs to to the settlement, the enditermination of the tenancy. Therefore, each shareholder has a claim against the other shareholders to submit the declaration of termination , which is necessary for the termination of the tenancy (cf. OLG Hamburg, Judgment of 18.05.2001 – 8 U 177/00). Because if the rental agreement is from concluded jointly by several tenants, it can only be concluded jointly by all tenants. terminated (Schmidt Futterer/Blank, 13. Edition. 2017, BGB § 542 Rn. 35–45). As the termination of the shared apartment is part of the settlement of the company in accordance with Section730 BGB is, meets the co-tenants one legally enforceable duty to cooperate (cf. also Palandt–Thomas, § 730 marginal no.. 4; LG Hamburg, Judgement. vom 12.11.1992 – 332 O 338/92).
At the latest when the plaintiffs moved out in February or. March 2018. the company i.S.d. § 723 BGB has been dissolved. The final departure of the plaintiffs is, itself when this should not have been made with the consent of the defendant, in any case as an implied terminationigDeclaration of conformity on the company. In addition, the plaintiffs have made several representations to the defendant, for example in a letter from a lawyer dated 02.03.2018, expressed, that they are BGB–Society dissolve want.
The claim of the plaintiffs is also not void due to a breach of the principle of good faith (§ 242 BGB) excluded. Such an infringement could only be considered, when no interest of the plaintiffs would be recognizable, that the defendant agrees to the termination. However, an interest of the plaintiffs must be affirmed, as they are jointly liable for all claims arising from the tenancy even after they have moved out. Not only for the contractually owed rent, but also for all claims for damages by the landlord. This leads to, that the plaintiffs are constantly exposed the Insolvency of the defendant exposed are, what them is not reasonable. Rather, the authority to terminate the company and the resulting consequence of the dispute , including the joint announcementigation of the Tenancy counts, a typical risk, that each shareholder enters into with the establishment of such a company. The tenant, who does not terminate the apartment, but wants to continue using it, it is also free to, this must be agreed separately with the landlord.
Contrary to the view of the defendant comes it also does not depend on, whether the consent of any other tenants be obtained tenantswhich may still exist due to previous rental agreements. For even if one assumes that the consent of further tenants would have to be obtained, this would not be relevant here. This is because the plaintiffs’ claim against the defendant for cooperation in the termination of the apartment in dispute exists irrespective of any requirement for further declarations of consent to the termination .
VThe plaintiffs can claim legal fees from the defendant on the grounds of default in accordance with Section 286 BGB. The defendant gte has been in default vis-à-vis the plaintiffs since 24.11.2017 with the submission of the notice of termination. in default.
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