Termination of the tenancy agreement without notice because the flat is too small

The VIII. Civil Senate of the Federal Court of Justice has ruled that a considerable deviation of the actual living space from the contractually agreed living space entitles the tenant to terminate the tenancy agreement without notice.

The plaintiffs had been tenants of a flat of the defendant in H since 1 May 2002. By letter of 24 January 2005 from a lawyer, the plaintiffs declared termination without notice, alternatively ordinary termination of the tenancy with effect from 30 April 2005, because the living space deviated by more than 10% from the agreed living space of "approx. 100 m²".

With the action, the plaintiffs demanded, inter alia, the repayment of overpaid rent of €4,901.11. By way of counterclaim, the defendant claimed € 2,045.55 rent for February to April 2005.

After obtaining an expert opinion according to which the actual living space was only 77.37 m² and deviated by 22.63 % from the agreed living space, the Local Court ordered the defendant to pay € 4,901.11 and allowed the counterclaim in the amount of € 1,600.85. On appeal of the plaintiffs, the Court of Appeal reduced the sentence on the counterclaim to € 1,263.45; it rejected the further appeal. On the plaintiffs' appeal, the Court of Appeal reduced the sentence imposed on the counterclaim to an amount of € 1,263.45; it dismissed the further appeal. The plaintiffs' appeal, which was allowed by the court of appeal, was successful.

The Federal Court of Justice stated that with a deviation in living space of 22.63% a defect existed which had the consequence that the plaintiffs were not granted the use of the rental object in accordance with the contract in due time and therefore the prerequisites for termination without notice for cause pursuant to § 543 para. 2 sentence 1 no. 1 German Civil Code (Bürgerliches Gesetzbuch - BGB) were met. A termination without notice does not require - contrary to the opinion of the court of appeal - that the tenant explains why the continuation of the tenancy is no longer reasonable for him. On the contrary, for a termination to be effective it is sufficient in principle if one of the reasons set out in

§ The grounds for termination are cases of unreasonableness listed in section 543 (2) sentence 1 nos. 1 to 3 of the German Civil Code (BGB). These grounds for termination are legally typified cases of unreasonableness. Insofar as their factual prerequisites are fulfilled, a good cause within the meaning of section 543 sub-section 1 BGB for termination without notice is generally given.

However, the right to extraordinary termination without notice may be forfeited due to special circumstances of the individual case. This can be considered, for example, if the tenant realises at the beginning of the tenancy or afterwards that the actual living space is more than ten per cent less than that stated in the tenancy agreement without promptly taking this as a reason to terminate the tenancy without notice. However, there were no indications for the existence of such special circumstances in the findings of the court of appeal.

 

Judgment of the Federal Supreme Court of 29 April 2009 - VIII ZR 142/08

Lower courts:

AG Michelstadt - Judgment of 29 November 2007 - 1 C 825/05

Darmstadt Regional Court - Judgment of 30 April 2008 - 7 S 2/08

 

Source: BGH press release of 29 April 2009

 

Goldberg Attorneys at Law

Lawyer Michael Ullrich, LL. M. (Information Law)

E-mail: Info@goldberg.de

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