The Federal Court today ruled that a landlord a living space lease can not cancel because of a previous tenant's legal costs, not based on default of payment clearing process settles.
The defendant has rented an apartment by the applicant in Lüneburg. The rent is currently paid in any case by the Joint Venture (Consortium of community support and the employment agency for benefits under the Social Code Book II) for the tenant. In December 2006, the landlady announced without notice due to a substantial arrears, the tenancy and then got evicted. Within the grace period of § 569 para 3 No 2 BGB * were the rent arrears paid by the consortium, so that the dispute said the case does not and the tenant's legal costs were imposed. The tenant has not paid these costs so far. In November 2008, announced the lease, the landlord again on the grounds that the tenant had breached his obligations under the lease at fault, in that he had not paid the resulting inter alia from the original eviction process costs. The district court dismissed the eviction action brought by the landlord. The district court dismissed the appeal by the applicant. directed against the revision of the landlady had no success. Inter alia, for the Housing Tenancy VIII competent civil division of the Federal Court has ruled that the failure to pay the eviction process in the earlier litigation costs incurred neither a proper nor a dismissal is justified the lease.
The landlord, a lease on housing under § 573 para 1 sentence 1 BGB ** only terminate properly if he has a legitimate interest in the termination of the lease has, for example, if the tenant's contractual obligations culpably is not negligible (§ 573 para 2 No 1 BGB **).
Although injured, the tenant of the costs imposed upon him from an earlier, based on default of payment clearing process does not settle its obligations under the lease. This breach of duty but not achieved by law for a dismissal presumed materiality. For the assessment of materiality may be in § 569 para 3 No 2 BGB, as expressed by the legislature standings ignored. According to that provision, a late payment based on extraordinary termination of the lease for cause (§ 543 para 2 sentence 1 No. 3 BGB ***) ineffective, if the landlord no later than the expiration of two months after the onset of the pendency of the eviction claim with regard to the rentals due and the compensation due is satisfied pursuant to § 546A Civil Code or committed a public place to meet. The aim of the scheme is to prevent the homelessness of the tenant. With this intention is not to agree, if indeed the extraordinary termination of the lease because of late payment due to be ineffective by the social welfare authority within the grace period brought about the satisfaction of the lessor, but would remain the landlord can terminate the rental agreement nevertheless again because the tenant economically in a position to pay the legal costs of the eviction proceedings completed.
For the same considerations, the failure to pay the legal costs and no serious cause for extraordinary termination pursuant to § 543 para 1 BGB *** dar.
* § 569 Extraordinary dismissal for cause
...
(3) In addition to § 543 para 2 sentence 1 No. 3, the equation
first ...
second The notice will also be ineffective if the landlord no later than the expiration of two months after the eviction is pending claim regarding the rentals due and the due compensation under § 546A Section 1 is satisfied or oblige a public body to meet. ...
** § 573 Termination for the landlord
(1) The landlord may terminate only when he has a legitimate interest in the termination of the lease. ...
(2) A legitimate interest of the landlord at the termination of the lease is in particular if
first the tenant has a contractual obligation not culpably violated irrelevant
second ...
*** § 543 Extraordinary dismissal for cause
(1) Each Contracting Party may terminate the tenancy for cause exceptionally without notice. Good cause exists if the terminating party, taking into account all the circumstances of the case, particularly the fault of the parties, and in consideration of the mutual interests of the continuation of the tenancy before expiry of the notice period or until other termination of the lease can be expected.
(2) Important Reason in particular, if
first ...
second ...
third the tenant
a) for two consecutive appointments with the payment of rent or a substantial portion of the rent is late or is
b) in a period that extends over more than two dates, in paying the rent in an amount in default, which reaches the rent for two months.
In the case of sentence 1, No. 3, the cancellation is excluded if the landlord is previously satisfied. It is ineffective if the tenant was able to free from his debt by set-off and immediately declared after the termination of the netting.
Case of 14 July 2010 - VIII ZR 267/09
AG Lüneburg - Case of 30 April 2009 - 12 C 636/08
LG Lüneburg - Case of 16 September 2009 - 6 S 62/09
Source: Communication No 147/2010 of 14 July 2010, the press office of the Federal
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Source: © insektivor212/PIXELIO www.pixelio.de
This Supreme Court decision would 
