Termination of rental agreements
In German tenancy law, the termination of rental contracts is the termination of a rental contract by the landlord or tenant, which is subject to special protection against dismissal .
General
When terminating rental contracts, a distinction must be made between ordinary termination, extraordinary termination with a statutory notice period and extraordinary termination without notice. Special dismissal protection regulations apply to rental contracts for living space .
Termination of rental contracts under German tenancy law
In principle, the following applies: In the case of fixed-term rental contracts, an ordinary termination cannot be made before the agreed time limit has expired or as long as an exclusion or waiver of termination has been agreed. In principle, premature termination is only possible in the event of an extraordinary termination or if the contracting parties agree on a rental cancellation agreement. The widespread view that the tenant only has to provide the landlord with three new tenants in order to be able to leave a temporary lease early is wrong; this only applies if there is a corresponding agreement in the rental agreement or in a rental cancellation agreement, furthermore if special hardship reasons of the tenant are to be recognized.
Ordinary termination of apartment rental agreements
Only rental contracts that have been concluded for an indefinite period can be terminated by either party by ordinary termination. The tenant can terminate without giving reasons, landlords require a legally recognized reason for termination. The law prescribes certain forms and time limits for the ordinary termination of an open-ended contract:
Form of termination
In particular, the termination must be in writing ( Section 568 (1) BGB), the letter of termination must be signed and clearly declared as termination. If several people are involved in a tenancy on one side of the contract, termination must be given by all or to all of them. According to Section 573 (3) BGB, the landlord must justify the termination. In principle, the landlord can only terminate a tenant who is loyal to the contract if he has a legitimate interest in terminating the lease ( Section 573 (1) BGB). The termination must reveal the reasons asserted by the landlord. Section 573 (2) BGB gives examples of reasons for a legitimate interest on the part of the landlord in the termination, e.g. B. significant breaches of contractual obligations or “personal use” (i.e. the landlord needs the apartment for himself or for family members). In Section 573, Paragraph 2, No. 3 of the German Civil Code (BGB), the law also names unprofitability as an ordinary reason for termination. If the buyer of an apartment building pays an extra purchase price that is significantly higher than the economic value of the property, this does not lead to unprofitability in the opinion of the LG Kiel.
notice period
Landlords and tenants can still only terminate if certain statutory deadlines are observed. According to Section 573c, Paragraph 1 of the German Civil Code, the tenant must comply with a notice period of three months regardless of the length of the lease, but a shorter period can be contractually agreed. If, on the other hand, the landlord cancels, the deadline depends on the duration of the tenancy. In the case of a contract of up to five years, the lessor's notice period is three months, after more than five years six months and after eight years nine months. However, other notice periods, such as shorter periods for the tenant or longer periods for the landlord, can be agreed or may arise in the case of old rental agreements that were concluded before September 1, 2001.
The same notice periods apply to furnished rooms or apartments as to unfurnished apartments. An exception is furnished living space that is located in the landlord's apartment, which the landlord lives in himself. If this living space is not rented to a family or household community, a significantly shorter period applies: A termination by the tenant or the landlord, which is received by the other party on the 15th of the month at the latest, ends the rental agreement at the end of the same month. ( Section 573c BGB Paragraph 3 in conjunction with Section 549 Paragraph 2 No. 2 BGB).
Cancellation blocking period
An additional notice blocking period applies to the landlord when converting a rental apartment into a condominium . Anyone who buys a converted rental apartment, as the new owner, can in principle only terminate the contract three years after the acquisition (entry in the land register) due to personal use or hindrance to commercial exploitation (blocking period, Section 577a (1) BGB). This period can be extended by up to 10 years in cities and municipalities if this has been determined by a statutory ordinance of a federal state. After the blocking period has expired, the landlord can terminate the contract subject to the notice period applicable at that time.
Right of the tenant to object to the termination
Even if the landlord has a legitimate interest in terminating the tenancy, the tenant is not always forced to move out (immediately). In the event of a timely termination, it must also be checked whether the tenant can object to the termination and demand the continuation of the lease. According to the law, this is the case "if the contractual termination of the tenancy would mean hardship for the tenant, his family or another member of his household, which cannot be justified even taking into account the legitimate interests of the landlord"; According to the law, there is also hardship "if adequate substitute living space cannot be procured under reasonable conditions" (so-called social clause of § 574 BGB). According to the case law, the following reasons for the objection can also be considered: serious illness, old age and frailty . However, the renter does not have a right of objection in accordance with § 574 BGB in the event of justified extraordinary termination by the landlord.
The objection must be declared in writing ( Section 574b (1) BGB). The tenant's signature is therefore essential; if there is more than one tenant, everyone must sign. The letter of objection must be received by the landlord no later than two months before the end of the notice period (Section 574b (2) BGB) if the landlord has indicated the possibility of objection in the notice of termination or in good time before the end of the objection period. If the landlord fails to do this, the tenant can also object later - at the latest in the first date of the possible evacuation process.
Extraordinary termination without notice
Termination without notice is based on § 543 and § 569 BGB. By far the most important case is the tenant's default in payment. If the tenant is in arrears for two consecutive appointments in the amount of an amount that exceeds one month's rent, or if he is in arrears with an amount totaling two months' rent, the landlord can terminate the contract. However, the tenant is given the opportunity to make this termination ineffective by settling all arrears (including those that have arisen after the termination) or by obliging a public body, in particular a social service provider, to settle (§ 569 Paragraph 3 No. 2 BGB). This so-called grace period ends two months after the tenant has received an eviction notice because of the termination; thereafter the termination remains effective in any case. However, if the tenant has already been given notice of default within the last two years and has made the notice ineffective by making subsequent payment, he cannot benefit from the grace period again; the second termination remains effective in any case.
The landlord may only consider the current rents in the question of default in payment, d. H. No one-off amounts such as B. Back payments of operating costs, deposits, damage caused by default, legal fees, etc. are included.
It should be noted that the grace period only applies to termination due to "pure" default in payment. If the landlord bases the termination on other reasons (this can also be, for example, a constant late payment of the rent), the grace period for this part of the termination does not apply; it does not ultimately bring the tenant anything.
Termination without notice due to default in payment must also be made in writing and substantiated. At least the delay in payment must be given as the reason and the total balance of arrears.
A reinterpretation of an ineffective extraordinary termination into an ordinary termination is only possible if the letter of termination shows that the landlord definitely wants to end the tenancy.
As a rule - except in the case of default in payment - a warning to the tenant is required before termination. In exceptional cases, this can be dispensed with, e.g. B. if the tenant insults other tenants in the worst possible way and also annoys them with nocturnal noise.
Relationship to resignation
Before the rental property is handed over, it is possible to withdraw according to § 323 BGB. After the rental property has been made available, a right of withdrawal is replaced by a right to extraordinary termination without notice.
The termination of rental contracts under Austrian tenancy law
Rental contracts that have been concluded for an indefinite period can be terminated by the contracting parties by ordinary termination. For a termination by the lessor in the full and partial area of application of the MRG, this is only effective if it is brought before a court and the lessee does not raise objections within 4 weeks. The landlord must refer to particularly important reasons for termination within the meaning of Section 30 MRG.
If the tenant cancels a lease that has been concluded for an indefinite period and is subject to the full or partial scope of the MRG, this can be done in writing without giving reasons. A judicial termination of the tenant is no longer mandatory since 2006, but is still possible in principle.
In single and two-family houses, the landlord can informally terminate rental contracts for an indefinite period without giving reasons. The same goes for the tenant. The notice period is based on the contractual agreement or the legal provisions of the Code of Civil Procedure (ZPO).
In tenancy agreements that have been concluded for an indefinite period, temporary waivers of termination are considered permissible by case law.
Termination of the rental agreement in Switzerland
Pursuant to Art. 266 ff. Of the Swiss Code of Obligations , both parties can terminate the open-ended lease with a period of notice and certain formal requirements (e.g. in writing and on a prescribed form for the landlord). However, certain restrictions apply to the landlord and the tenancy must be extended for a certain period if the termination would result in hardship for the tenant.
Special case: rent cancellation agreement
As a rule, both tenants can only withdraw from the tenancy by terminating the tenancy agreement. But you have to adhere to the agreed notice periods. A termination is a unilateral solution to the contract. This means that either the tenant or the landlord cancels the lease - the other party does not have to agree to the termination.
Another way to end the tenancy is therefore the lease termination agreement. With a lease termination agreement, both sides must agree that the lease agreement should be terminated. This amicable cancellation of the contract is also possible without observing a specific deadline.
Individual evidence
- ↑ cf. the legal decision of the Higher Regional Court Karlsruhe, in: Housing Industry and Tenancy Law 1982, p. 124
- ↑ Berlin: Ordinance within the meaning of Section 577a Paragraph 2 BGB on extended protection against dismissal when converting a rental apartment into a condominium (Kündigungsschutzklausel-Ordinance - KüSchKlVO Bln) of August 16, 2011 (GVBl. P. 442, ber. P. 466)
- ↑ NRW: Ordinance on the determination of the areas with an extended blocking period for the establishment and sale of residential property in rented apartments (Kündigungssperr termverordnung - KSpVO NRW) of January 24, 2012 (GV. NRW. 2012 p. 82) [1]
- ↑ Frank Kemter: When the landlord can terminate the tenant without notice . In: Immowelt Ratgeber , March 23, 2012, accessed on March 31, 2014.
- ↑ Dominik Schüller: The offended landlord . ( Memento of the original from March 9, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Sawal Lawyers and Notaries, accessed March 31, 2014.
- ↑ Lease termination agreement ᐅ Early termination of the rental agreement . In: rechtsberater.de . ( rechtsberater.de [accessed on January 18, 2018]).
