GER: Must Tenants Respond to Termination Notice?

Sept 22, 2023 Benn-Ibler Rechtsanwälte

There is no reason to sue for future eviction simply because the tenant remains silent as to whether they will actually leave the premises upon termination of the commercial lease, according to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH).

The landlords of a doctor’s surgery had given notice of termination of the lease with the defendant tenant in due time. After the defendant failed to respond to the notice of termination, the landlords became nervous. They sent the defendant tenant a letter from a lawyer asking her to confirm that she had vacated the rented premises on time. The defendant did not reply to this. As a result, the landlords sued for future eviction from the rented property. The tenant accepted the claim for eviction on receipt of the complaint but did not want to pay the costs of the proceedings on the grounds that she had not given the landlords any cause of action.

Under Section 93 of the German Code of Civil Procedure (Zivilprozessordnung), the plaintiff must bear the costs of the proceedings even if they are successful, if there was no reason to bring the action. The BGH held that the defendant’s conduct alone, in this case her silence in response to the landlords’ inquiries, did not constitute reasonable grounds for bringing an action to enforce the right to eviction and restitution. The tenant only had cause to bring an action if she actively behaved in a way that, from the point of view of an objective, reasonable observer, cast doubt on her willingness to comply.

According to the BGH, the principle applies that debtors are not obliged to declare their willingness to perform before the due date.

The court rejected the opinions in pertinent literature and case law that argue for an obligation to respond to the notice of termination due to the owner’s desire for planning certainty.

There was also no reason to deviate from the established principles of commercial landlord and tenant law, as in this case.

BGH XII ZB 537/22 (28 June 2023)