Auer Witte Thiel informed: tenant is in default of payment, work also ordinary termination Munich July 2013: neither Article 573, paragraph 2 No. 1 BGB 569 ABS. 3 BGB No. 3 are on an ordinary termination due to default of payment applicable. The Federal Supreme Court in a ruling made it clear. The firm Auer Witte Thiel informs about the backgrounds of the judges decision and explains what the verdict for landlords.

According to the German Federal Supreme Court, other rules apply to an ordinary termination due to default in payment, as for extraordinary dismissal for the same reason. So refers to 543 paragraph 2, sentence 1, no. 3 BGB, which as a precondition a minimum Mietruckstand of two month’s rent or a default period of two months in a row provides alone on extraordinary cancellations. May be below this threshold value, however, in an ordinary termination, refers to the judgment of the Federal Court by the 10th of October 2012 (AZ. Auer Witte Thiel VIII ZR 107/12). Federal Court judges: legal requirements for extraordinary termination, with neat not to his judgment came the Federal Supreme Court in a case in which a tenant first had fallen due to non-payment or incomplete payment of the advances of its heating costs in default.

His landlady announced him so punctually. After he legally had been sentenced to payment of the receivable and finally paid them, the tenant with the current monthly rent fell into arrears. Then, the landlady announced again on time. The tenant went into revision, so that finally the Bundesgerichtshof concerned with the case, so Auer Witte Thiel. In his decision dated the 10th of October 2012 (AZ. VIII 107/12) the Supreme Court came to the following conclusion: an ordinary termination section 569, paragraph 3 is not applicable No. 3 BGB. Therefore the lessor have wait also not two months until the final condemnation of the tenant on the 15.11.10 with their termination. The lease was effectively ended on October 5, 2009. Auer Witte Thiel: Can landlord from which this conclusion Landlord move BGH judgment have explained even Auer Witte Thiel, you can properly terminate a tenancy if the Mietruckstand of the tenant but less than two is more than one month’s rent, the judgment of the Federal Court of Justice. Even if exceeds the default duration of one month, two but not yet reached, the landlord may terminate. The two-month notice according to 569, para 3 No. 3 BGB touched in this case. About the law firm Auer Witte Thiel, the specialization areas of focus and the development of core competencies in certain disciplines are indispensable in the legal services sector. Auer Witte Thiel is a business law oriented law firm and represents several German insurance companies.

With the deposit, security should be given the landlord it is customary in Germany that a deposit will be the landlord of tenants for rental housing. This deposit is to reassure the landlord, that claims even after the official rental period and after the lease of the tenant no longer flow, be balanced can. While the German law of tenancy but foresees strict rules for deposit when renting a home, however. It is both bail upwards and capped as also will the landlord provided, what he has to make with the deposit while the stock of the lease. The landlord is not allowed to use the security deposit for their own purposes or to mix with own funds. The tenancy law instead requires the landlord, that he the amount of money he receives from the tenant, has to get to a Bank and lay at a normal interest rate has.

The interest obtained on this facility are also not the landlord, but belong to the tenant. You are but not in him paid, but increase only the safety of the landlord. At the end of the lease the lessee receives the full amount of money along with the in the meantime accrued so by the landlord, if no claims of the lessor are more unclear, for which the deposit serves as a security. The amount the landlord may require maximum three times of the monthly rent from the tenant. A higher deposit is required by the landlord, you can politely but firmly oppose having regard to the applicable law of tenancy.

It should be every landlord be aware but that also a rental security doesn’t even begin to compensate for the damage that a tenant can potentially inflict over three months rent. You must imagine alone, what happens if the tenants of overnight stops rental interest payment. The lessee will speak out while the termination without notice him in this case, but that does not mean that the tenant actually leaves the apartment. The tenant may rather even months after the Termination at the home remain. Then, nothing else remains the landlord to work harder as an eviction at the competent local court. Usually he will need a lawyer for this, which it in turn costs money. Has he then obtained a ruling vacating the title, he must make an advance even the bailiff for the evacuation of the apartment. Not rarely the clearance costs several thousand euro alone. And for all of these additional costs including lost rental, the landlord there at the end with a deposit of three months rent.

Amtsgericht Hamburg-Altona in his judgment of the 14.02.2012 – 316 C-275/11 any use of an apartment through extensive illicit cultivation and use of cannabis is an important reason for the termination iS of 543 paragraph 1 sentence 1 BGB dar. The main tenant must leave BGB attributable to the fault of his subtenant in accordance with 540, para. He is liable for the negligence of the sub-tenant as for the fault of his own. Thus, the District Court of Hamburg-Altona in his judgment of the 14.02.2012 – ruled 316 C-275/11. In this particular case, the tenancy was since 1990.

The tenant had sublet from April 2009 the apartment. The lodger illegally grew cannabis plants in the home. During a police search of the House was found next to the plants of many technical devices intended for the cultivation of cannabis, as well as sales-ready packaged marijuana. The landlady announced the tenant then without notice, that is without having issued a previous warning, recalling the drug cultivation, said the tenant without notice, that from the activities of this Subtenant had no knowledge. The AG comes to the conclusion that any use represents an important reason also to immediate termination of the main lease the apartment by the lodger as a result of the extensive illicit cultivation and consumption of cannabis in balancing the interests of landlord and tenant. According to the decision of the District Court, it is not that the offence was committed not by the tenant, but her lodger, as the (main) tenant attributable to the fault of their sub-tenant is must. This in turn has resulted in that the main fault of the sub-tenant just like for the fault of his own shall be liable for.

In addition to the reported negligence of the tenant is the interests to be taken into account also the legitimate interest of the lessor, the dangers to protect against their other tenants and especially children living in the House and youth, which emanate from the cannabis cultivation in the leased object. The tenant could itself, however, does not claim that the Excerpt of the subtenant, who was responsible for the cultivation of cannabis, termination so that in hindsight has been dropped. Terminates with the termination of the tenancy and this also a subsequent conduct of the lessee changes nothing.The AG continues that a warning was here exceptionally expendable, because the trust was already completely destroyed and also by binding behavior in the future no longer could be restored. Note: The opinion of the AG of Hamburg-Altona is quite understandable in relation to the cultivation of cannabis in the apartment for rent the thing after. The signatory is noticed but in the past frequently, that the lease agreed from the outset the consumption of cannabis as a major reason for termination. If this clause is lawful, is questionable and will require further consideration and decision. Lawyer Michael Angele, Trier

May the landlord due to a contractually prohibited animal husbandry, for example dog ownership terminate? What is the legal situation if the rental agreement generally prohibited livestock, but the tenant feels the need to keep a pet? May the landlord due to dog ownership terminate? May the landlord because a cat owned by the tenant terminate? What is to be done when the lease although allows livestock to the tenant wants to keep but throughout many of his beloved animals? First of all, it’s on the provisions in the lease. This allows the animal husbandry, the lessee to note nevertheless a certain boundaries. A tenant holds about 15 cats in his apartment, then also still constantly running around in the community garden, the landlord can terminate the tenancy after previous unsuccessful warning or complain to refrain from. For the reason of termination depends on it, as fellow tenants are burdened by the animal husbandry. Not every burden but a reason for termination.

5-6 cats will probably be allowed, but not if the cats out for some reason the fellow tenants charge. The lease contract prohibited livestock, a holding of dogs and larger animals such as a Kinkajou is prohibited. Pets must be kept on the other hand always even when explicit prohibition in the lease. The common wording in leases, that the holding of all domestic animals is not permitted, is ineffective. Small animals include cats, birds and other animals of similar size. If the tenant However despite ban keeps a big dog, the termination of the tenancy may probably only then, after previous unsuccessful warning if the landlord has complained previously to refrain from. A tenant who continues despite lost injunctions to his best friend, will probably have to move out. Determines the lease, that the attitude of an animal depends on the consent of the lessor, the lessor may refuse consent only for factual reasons.

Specialist Attorney tip tenants: be the kind and number, upon conclusion of the rental agreement of permitted animals specifically from. Ensure that the animals you disturb anyone as possible. A consent of the lessor is required and this denied approval, you should get better no Doberman and instead a Dachshund settle. Specialist Attorney tip landlord: If you want to prevent a dog ownership, you use a clause in the lease that expressly regulates this. Warn a tenant who keeps animals in illegal way, before you take further measures about a termination. Under certain circumstances, an injunction of a termination is preferable. Some courts see the termination due to unauthorized animal husbandry as ineffective, because the landlord first should have taken with an injunction. Seek advice before saying a termination of a professional. A post by lawyer for rental and property law Alexander polymath and lawyer Dr. Vadim Belyaev shares his opinions and ideas on the topic at hand. Attila Fodor, Berlin Potsdam: Friedrich-Ebert-Strasse 33, 14469 Potsdam Tel. (030) 4 000 4 999 E-mail: