For the third time, Berlin Regional Court ruled that tenants who settle their rent arrears thereby cure both termination without notice and ordinary termination. For the third time, the Federal Court of Justice (BGH) has overturned such a judgment, using unequivocal language.
The case: three months’ rent in arrears
The defendants had been tenants of a flat belonging to the claimant in Berlin since November 1994. They did not pay the rent for October 2019, January 2020 or May 2021. After the claimant had reminded them in writing several times of their obligation to pay the rent, she gave notice on 8 June 2021 to terminate the tenancy without notice and, in the alternative, by ordinary notice, on the grounds of late payment. On 30 June 2021, the defendants settled the rent arrears in full.
The Local Court upheld the action for possession on the basis of the ordinary termination of the tenancy issued in the alternative. On appeal by the defendants, the Regional Court amended the judgment at first instance and dismissed the action.
The judgment: ordinary termination remains valid despite payment
The Federal Court of Justice ruled unequivocally that settling the rent arrears affected only termination without notice, and not an ordinary termination that had also been issued. The fact that a payment within the grace period cures only termination without notice reflected the clear intention of the legislature. “This (limited) effect of the tenant’s right to make subsequent payment reflects the clear intention of the legislature, meaning that a judge bound by statute and law (Article 20(3) of the Basic Law) may not alter this decision on the basis of their own legal-policy views and replace it with a judicial solution that has not (thus far) been achievable in the legislative process.”
[Federal Court of Justice, case no.: VIII ZR 106/23, 23.10.2024]