BGH negates applicability of § 314 Abs. 3 BGB in tenant law

BGH, VIII ZR 296/15 from July 13, 2016

Termination due to older arrears

On July 13, 2016, the German Federal Court ruled (VIII ZR 296/15) that an extraordinary termination of a lease due to older arrears is effective even when the landlord declares the termination seven months after gaining knowledge of the arrears.

About the case:
The plaintiff, a Catholic parish in the area of Dusseldorf, had rented out an apartment to their former verger, since 2006. The defendant did not pay any rent for the months of February and April 2013. The representatives of the parish sent her a written warning in August, 2013. Because she did not pay the respective sum, the plaintiff sent her a written termination of contract without notice on the 15th November, 2013.

The defendant argued that because so much time had elapsed after the fact, the plaintiff had created a factual trust for her that they would not terminate her lease. The landlord had forfeit their right of termination.

The federal court of Germany rejected this inference. The Senate could not detect any circumstances that created a moment of trust on the tenant’s side. He denied the application of § 314 III German Civil Code (BGB) alongside the special codes concerning immediate extraordinary termination of leases under §§ 543, 569 German Civil Code (BGB). Different than § 314 III BGB, these paragraphs provide no time limit, nor do they refer to § 314 III BGB.

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