Immediate cancellation of tenancy agreement of a tenant who suffers hardship though no fault of his own is effective
> February 2015
In a ruling of 4th February 2015 (reference no. VIII CR 175/14), the German Federal Court of Justice (FCI) ruled that it does not matter whether a tenant is responsible for the circumstances which lead to his inability to perform.
This also concerns a delayed rent payment which was due to a fault on the part of the job centre. The German Federal Supreme Court of Justice had to decide on the following matter: From October 2011 onwards, the tenant received benefits from the job centre under the German Social Security Code II. From January 2013 he failed to forward the payments from the job centre (which he received for his flat rental payments) to the landlord. Thereupon, the landlord issued a termination of tenancy without a period of notice and filed an action for eviction. After this, the job centre submitted an obligation to assume the rent arrears which had accumulated in accordance with Art. 569 Paragraph 3 No. 2 BGB [German Civil Code].
From July 2013, the Social Welfare Office was in charge of the tenant. He applied to it for welfare payments including the assumption of the costs for his apartment. He objected to the refusal of the assumption of the costs of the apartment and requested temporary relief from the social welfare court which, in turn, obliged the Social Welfare Office to pay the rents from September 2013 to June 2014 by way of a provisional order on 30th April 2014.
Since the tenant had not paid rent for the months from October 2013 to March 2014, the landlord again issued a termination without a period of notice on 12th March 2014 which could not be remedied during the period of grace. The local court found in favour of the action for eviction. The tenant’s appeal was not successful. The regional court, however, permitted the appeal. This appeal was not successful, however. The FCJ ruled that the tenancy agreement between the parties was effectively terminated with the termination of 12th March 2014 on account of the rent arrears for the months from October 2013 to March 2014.
In its explanation the FCJ ruled that the occurrence of the default was not precluded by the fact that the tenant needed welfare payments in order to pay his rent and that he had applied for the said welfare benefits in due time. A debtor can only default if he is responsible for the non-performance within the meaning of Art. 276 BGB. However, in the case of monetary obligations, financial difficulties do not release the debtor from the consequences of delayed payments even if such are due to reasons for which the debtor is not responsible. In this case, the principle applies: “You have to have money.” This applies regardless of any fault on the part of the tenant for his financial capacity. This also applies to rent debts.
