The landlady of a two-and-a-half-room apartment in Berlin issued a termination without notice to one of her tenants due to accumulated rent debts. The monthly rent amounted to 564 euros plus incidental costs. In February 2016, there was a payment arrears of 1,630 euros, so the landlady terminated the rental agreement without notice, or in the alternative with due notice. In July 2016, the rent arrears amounted to 2,750 euros, and the job center settled this amount within the grace period. However, the landlady continues to demand the eviction and surrender of the apartment.
The tenancy has existed for about 30 years. The tenant invokes the right of objection under Section 574 of the German Civil Code (BGB) and states that eviction from the apartment would represent an unreasonable hardship for her. In addition, her partner and their children live in the apartment and must also be taken into consideration. She also justifies her objection with the long rental period, her rootedness as well as the lack of living space in Berlin. The Berlin Regional Court (LG) dismisses the landlady's action for eviction and confirms the extension of the tenancy for an indefinite period of time pursuant to Sections 574, 574a of the German Civil Code (BGB). According to the decision of the Regional Court, a move would represent an unreasonable hardship for the tenant.
The Federal Court of Justice (BGH) sees it differently. The tenant's right of objection under Section 574 of the German Civil Code (BGB) is not valid despite the grace period payment. The decisive factor is that the tenant already had valid reasons for terminating the contract when she gave notice of termination without notice. Since the tenant was in arrears with the payments of more than two months' rent, the prerequisite for termination without notice pursuant to Section 543 (2) No. 3 letter b BGB as well as for ordinary termination (Section 573 (2) No. 1 BGB) is given. The payments made by the welfare recipient within the grace period do not revive the tenant's right of objection pursuant to Section 574 BGB.
Source: BGH
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