A tenant is in arrears with the rent payment for two consecutive months. He then receives notice of termination from his landlord. Since he does not want to move out voluntarily, the landlord is suing for eviction.
In the judged case, the tenant owes the entire rent for February 2018 and almost 20 percent from January when the notice is given. The Berlin Regional Court ruled in favor of the tenant.
A landlord can only terminate (in accordance with § 543 Paragraph 2 No. 3 a BGB) if the tenant is in arrears with a “not inconsiderable” part of the rent for two consecutive months. This significant backlog must exist for each of the two months, the court said. In the present case, there was no significant payment arrears. In addition, the tenant was only four days late for the February rental at the time of the termination. This was not a “not insignificant breach of duty” within the meaning of Section 573 (2) No. 1 of the German Civil Code.
(LG Berlin, judgment of 08.01.20, Az. 66 S 181/18)
In the event of termination due to rent arrears, a distinction is made between the authorization to terminate pursuant to Section 543 (2) No. 3 a) or 3 b) of the German Civil Code. It is important how the backlog came about.
Section 543 (2) no.3 a)
The landlord only has to wait two consecutive due dates for the rent. He can terminate the contract after approximately 35 days have elapsed since the first failure to pay. Prerequisite: The rent arrears in both months are “not insignificant”. A rent share of around half a month’s rent can be regarded as a not inconsiderable backlog.
Section 543 (2) no.3 b)
A rent arrears, which gradually accumulates over a longer period, must reach twice the amount of the rent. Only then can a termination be successful.
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