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Failure to pay the legal costs of a previous eviction process by the tenant no Event of Default

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

Source: © insektivor212/PIXELIO www.pixelio.de

Brazilian Primary Employment

Strict liability of the lessor with "cold" house clearance

The Federal today has taken a decision on the liability of the landlord if arbitrary evictions.

The plaintiff was a tenant located in Wiesbaden apartment of the defendant. From February 2005 he was absent for several months in places with unknown residence and was reported by relatives as missing. After the rent had not been paid for the months of March and April 2005, the landlord announced the lease without notice. In May 2005 she opened the apartment and took her in possession. Here, they disposed of some of the furnishings, another part of the things they found stored away with him. Based on an expert's report the tenant has asked for him missing after his statement during the evacuation or stolen, damaged or soiled items damages of € 62,000 plus reimbursement of its expert fees. The district court dismissed the action in that regard. The district court dismissed the appeal of the tenant.

directed against the revision of the tenant was successful. Who among other responsible for the Housing Tenancy Eighth Civil Division of the Federal Court held that the landlord is liable for the consequences of such clearance. Are not covered by a legal title, unauthorized possession of a home and the power of their own Overcome by the landlord make an illegal self-help (§ 229 BGB *); whereas the case even if the current whereabouts of the tenant is unknown and a contractual right of possession of the tenant has ceased due to termination. The landlord must also in these cases - where appropriate, after public notification of the eviction notice - and obtain an eviction action under this title. Does a landlord instead through a so-called "cold" a prohibited self-help eviction, he is under § 231 BGB ** regardless of fault for any resulting damage required.

is from this particular liability an arbitrary disposal of the collected objects found in the apartment. For the owner who takes an apartment without the presence of legal title to property is true for the objects in it a duty of care. Since the tenant taking possession of his apartment is unaware and therefore is not in a position to exercise his rights himself, continues to belong to this duty of care of the landlord that he draws up an inventory and establishing the value of the items therein. If he does this obligation is not sufficient for, he must refute the claim of the tenant, that certain objects were made in the evacuation of lost or damaged, and prove that they had a lower value than claimed by the tenant. This has ignored the district court and the tenant law in the pleading and proof in the Stock and condition imposed in the vacated apartment existing articles.

In addition, the district court has also spanned a damage estimate on the appropriate requirements. If - as in the case decided - fixed the alleged claim for damages on the merits, and its height is questionable, the claim must be dismissed not always complete. The court must judge in this case but after due consideration, whether at least the estimation of a minimum damage is possible. This is not the case here. The matter was therefore remanded to the district court so that the necessary findings on the value of stock and can be made during the clearing house if the plaintiff lost or damaged items.

* § 229 BGB: Support

Who takes away the purpose of self-help a cause, destroyed or damaged or who for the purpose of self-help a debtor, which the flight is suspicious, are arrested or the resistance of the debtor against an action that is required to submit to this eliminated, is not wrongful where magistrate help is not to have a timely and without immediate intervention, the risk that the achievement would frustrate the claim or much more difficult.

** § 231 BGB: Erroneous self-help

person who commits any of the acts listed in § 229 in the mistaken belief that exists for the exclusion of illegality necessary conditions are, is the other part to pay damages required, even if the error is due to negligence.

Case of 14 July 2010 - VIII ZR 45/09

AG Wiesbaden, Judgement of 15 May 2008 - 91 C 5169/06

LG Wiesbaden - Case of 21 January 2009 - 3 S 44/08

Source: Communication No 148/2010 of 14 July 2010, the press office of the Federal

Source: © insektivor212/PIXELIO http://www.pixelio.de/