German Federal Supreme Court

Auer Witte Thiel informed: tenant is in default of payment, work also ordinary termination Munich July 2013: neither Article 573, paragraph 2 No. 1 BGB 569 ABS. 3 BGB No. 3 are on an ordinary termination due to default of payment applicable. The Federal Supreme Court in a ruling made it clear. The firm Auer Witte Thiel informs about the backgrounds of the judges decision and explains what the verdict for landlords.

According to the German Federal Supreme Court, other rules apply to an ordinary termination due to default in payment, as for extraordinary dismissal for the same reason. So refers to 543 paragraph 2, sentence 1, no. 3 BGB, which as a precondition a minimum Mietruckstand of two month’s rent or a default period of two months in a row provides alone on extraordinary cancellations. May be below this threshold value, however, in an ordinary termination, refers to the judgment of the Federal Court by the 10th of October 2012 (AZ. Auer Witte Thiel VIII ZR 107/12). Federal Court judges: legal requirements for extraordinary termination, with neat not to his judgment came the Federal Supreme Court in a case in which a tenant first had fallen due to non-payment or incomplete payment of the advances of its heating costs in default.

His landlady announced him so punctually. After he legally had been sentenced to payment of the receivable and finally paid them, the tenant with the current monthly rent fell into arrears. Then, the landlady announced again on time. The tenant went into revision, so that finally the Bundesgerichtshof concerned with the case, so Auer Witte Thiel. In his decision dated the 10th of October 2012 (AZ. VIII 107/12) the Supreme Court came to the following conclusion: an ordinary termination section 569, paragraph 3 is not applicable No. 3 BGB. Therefore the lessor have wait also not two months until the final condemnation of the tenant on the 15.11.10 with their termination. The lease was effectively ended on October 5, 2009. Auer Witte Thiel: Can landlord from which this conclusion Landlord move BGH judgment have explained even Auer Witte Thiel, you can properly terminate a tenancy if the Mietruckstand of the tenant but less than two is more than one month’s rent, the judgment of the Federal Court of Justice. Even if exceeds the default duration of one month, two but not yet reached, the landlord may terminate. The two-month notice according to 569, para 3 No. 3 BGB touched in this case. About the law firm Auer Witte Thiel, the specialization areas of focus and the development of core competencies in certain disciplines are indispensable in the legal services sector. Auer Witte Thiel is a business law oriented law firm and represents several German insurance companies.


With the deposit, security should be given the landlord it is customary in Germany that a deposit will be the landlord of tenants for rental housing. This deposit is to reassure the landlord, that claims even after the official rental period and after the lease of the tenant no longer flow, be balanced can. While the German law of tenancy but foresees strict rules for deposit when renting a home, however. It is both bail upwards and capped as also will the landlord provided, what he has to make with the deposit while the stock of the lease. The landlord is not allowed to use the security deposit for their own purposes or to mix with own funds. The tenancy law instead requires the landlord, that he the amount of money he receives from the tenant, has to get to a Bank and lay at a normal interest rate has.

The interest obtained on this facility are also not the landlord, but belong to the tenant. You are but not in him paid, but increase only the safety of the landlord. At the end of the lease the lessee receives the full amount of money along with the in the meantime accrued so by the landlord, if no claims of the lessor are more unclear, for which the deposit serves as a security. The amount the landlord may require maximum three times of the monthly rent from the tenant. A higher deposit is required by the landlord, you can politely but firmly oppose having regard to the applicable law of tenancy.

It should be every landlord be aware but that also a rental security doesn’t even begin to compensate for the damage that a tenant can potentially inflict over three months rent. You must imagine alone, what happens if the tenants of overnight stops rental interest payment. The lessee will speak out while the termination without notice him in this case, but that does not mean that the tenant actually leaves the apartment. The tenant may rather even months after the Termination at the home remain. Then, nothing else remains the landlord to work harder as an eviction at the competent local court. Usually he will need a lawyer for this, which it in turn costs money. Has he then obtained a ruling vacating the title, he must make an advance even the bailiff for the evacuation of the apartment. Not rarely the clearance costs several thousand euro alone. And for all of these additional costs including lost rental, the landlord there at the end with a deposit of three months rent.

Michael Angele

Amtsgericht Hamburg-Altona in his judgment of the 14.02.2012 – 316 C-275/11 any use of an apartment through extensive illicit cultivation and use of cannabis is an important reason for the termination iS of 543 paragraph 1 sentence 1 BGB dar. The main tenant must leave BGB attributable to the fault of his subtenant in accordance with 540, para. He is liable for the negligence of the sub-tenant as for the fault of his own. Thus, the District Court of Hamburg-Altona in his judgment of the 14.02.2012 – ruled 316 C-275/11. In this particular case, the tenancy was since 1990.

The tenant had sublet from April 2009 the apartment. The lodger illegally grew cannabis plants in the home. During a police search of the House was found next to the plants of many technical devices intended for the cultivation of cannabis, as well as sales-ready packaged marijuana. The landlady announced the tenant then without notice, that is without having issued a previous warning, recalling the drug cultivation, said the tenant without notice, that from the activities of this Subtenant had no knowledge. The AG comes to the conclusion that any use represents an important reason also to immediate termination of the main lease the apartment by the lodger as a result of the extensive illicit cultivation and consumption of cannabis in balancing the interests of landlord and tenant. According to the decision of the District Court, it is not that the offence was committed not by the tenant, but her lodger, as the (main) tenant attributable to the fault of their sub-tenant is must. This in turn has resulted in that the main fault of the sub-tenant just like for the fault of his own shall be liable for.

In addition to the reported negligence of the tenant is the interests to be taken into account also the legitimate interest of the lessor, the dangers to protect against their other tenants and especially children living in the House and youth, which emanate from the cannabis cultivation in the leased object. The tenant could itself, however, does not claim that the Excerpt of the subtenant, who was responsible for the cultivation of cannabis, termination so that in hindsight has been dropped. Terminates with the termination of the tenancy and this also a subsequent conduct of the lessee changes nothing.The AG continues that a warning was here exceptionally expendable, because the trust was already completely destroyed and also by binding behavior in the future no longer could be restored. Note: The opinion of the AG of Hamburg-Altona is quite understandable in relation to the cultivation of cannabis in the apartment for rent the thing after. The signatory is noticed but in the past frequently, that the lease agreed from the outset the consumption of cannabis as a major reason for termination. If this clause is lawful, is questionable and will require further consideration and decision. Lawyer Michael Angele, Trier

Animal Husbandry

May the landlord due to a contractually prohibited animal husbandry, for example dog ownership terminate? What is the legal situation if the rental agreement generally prohibited livestock, but the tenant feels the need to keep a pet? May the landlord due to dog ownership terminate? May the landlord because a cat owned by the tenant terminate? What is to be done when the lease although allows livestock to the tenant wants to keep but throughout many of his beloved animals? First of all, it’s on the provisions in the lease. This allows the animal husbandry, the lessee to note nevertheless a certain boundaries. A tenant holds about 15 cats in his apartment, then also still constantly running around in the community garden, the landlord can terminate the tenancy after previous unsuccessful warning or complain to refrain from. For the reason of termination depends on it, as fellow tenants are burdened by the animal husbandry. Not every burden but a reason for termination.

5-6 cats will probably be allowed, but not if the cats out for some reason the fellow tenants charge. The lease contract prohibited livestock, a holding of dogs and larger animals such as a Kinkajou is prohibited. Pets must be kept on the other hand always even when explicit prohibition in the lease. The common wording in leases, that the holding of all domestic animals is not permitted, is ineffective. Small animals include cats, birds and other animals of similar size. If the tenant However despite ban keeps a big dog, the termination of the tenancy may probably only then, after previous unsuccessful warning if the landlord has complained previously to refrain from. A tenant who continues despite lost injunctions to his best friend, will probably have to move out. Determines the lease, that the attitude of an animal depends on the consent of the lessor, the lessor may refuse consent only for factual reasons.

Specialist Attorney tip tenants: be the kind and number, upon conclusion of the rental agreement of permitted animals specifically from. Ensure that the animals you disturb anyone as possible. A consent of the lessor is required and this denied approval, you should get better no Doberman and instead a Dachshund settle. Specialist Attorney tip landlord: If you want to prevent a dog ownership, you use a clause in the lease that expressly regulates this. Warn a tenant who keeps animals in illegal way, before you take further measures about a termination. Under certain circumstances, an injunction of a termination is preferable. Some courts see the termination due to unauthorized animal husbandry as ineffective, because the landlord first should have taken with an injunction. Seek advice before saying a termination of a professional. A post by lawyer for rental and property law Alexander polymath and lawyer Dr. Vadim Belyaev shares his opinions and ideas on the topic at hand. Attila Fodor, Berlin Potsdam: Friedrich-Ebert-Strasse 33, 14469 Potsdam Tel. (030) 4 000 4 999 E-mail:

Michael Forschner

Their private rehabilitation have although lasted ten years, but compared with a rapid restructuring due to foreign work, save 240,000 euros. Learn more at this site: Bruce Schanzer. It was to take into account the long-term self regulation for economic reasons was a better option than renting in the disputed period. The Lower Saxony Finance Court did not follow this line of argument and dismissed the action of the spouses. His judgment according to advertising costs in the real estate vacant prior to repair can be claimed. However, this required to achieve this goal in addition to the mere desire of the real estate owner, to achieve rental income, a practice that shows lens that he purposefully affiliated works. The Court’s opinion the claimant for the period of between 2000 and 2006 showed no misconduct, that the Viewer could to the conclusion, they would have pursued a serious income intention. The judgment of the Finanzgericht Niedersachsen reveals the limits of claims of previously incurred expenses as expenses from rental and leasing. According to the case-law only advertising costs for remedial of uninhabited buildings should related to the taxpayer, if he shows objectively verifiable by his behaviour that he performs a rapid renovation for the purpose of earning income from rent or lease. The longer these measures without significant progress, intended to generate income is the unbelievable and the recognition of restructuring costs as advertising costs will be more likely. Accountant and economist Michael offers researchers the clients of his law firm in Essen in the area of advertising costs at any time experienced support and advice. He gladly provides more information about this and other subjects of tax advice.

Conditions Even Made

In our series of post recently ‘on the website check’ we portray everyday problems, we have found in our Web site checks and demonstrate solutions. During the meetings of our site checks at the EC-M, entrepreneurs often ask the question whether their terms and conditions in order to be. At this point, we explain that we do provide legal advice in individual cases. We question, however, who created the general terms and conditions. “Almost shockingly often we hear the answer: well, I myself.” “” On demand, how exactly it because came to the rules, explain many entrepreneurs, a comprehensive comparison with appropriate “terms and conditions for competitors made and then adapt the corresponding passages” to have. Not infrequently we hear also the answer, we have found that at any major online provider, but expensive paid lawyers work, which will already know what they are doing.” An approach that is too often bitter revenge.

General terms and conditions -What? What are general terms and conditions at all the? “General terms and conditions are according 305 BGB all for a variety of contracts put in contract conditions, which is a Contracting Party (the user) of the other Contracting Party at the conclusion of a contract.” General terms and conditions cause the conclusion of the contract is simplified, accelerated through a formulated above clause and standardized. They change the allocation of risk and liability often in favor of the user usually over law and facilitate the contract this. Therein lies the threat that the user, typically an entrepreneur who is also economically stronger and experienced business, can push through unilateral or surprising arrangements towards a consumer, that move too far away from scores of the Act at the same time. Therefore subject to general terms and conditions of a legally standardized content control. Ineffective clauses go in doubt at the expense of the user (i.e.

Seattle Sounders

A judgment of the Federal Court of justice speak also for the permissibility of separate cost offsets (from 20.01.2005 – III ZR 251/04). After that running the Supreme Court inter alia that at separating brokerage contract and insurance policy not only legally, but also actually made the claim on the broker pay regardless insist the later fate of the insurance contract and a premature termination of the insurance does not touch the obligation to pay the brokerage rates. Contrary to the opinion of the 10th Civil Chamber of the Landgericht Rostock (in their judgment of the 06.08.2010-10 O 137/10) not the legal right of termination the policyholder will undermine this also or the scheme of also no penalty comes immediately. Because the closing costs could be paid by a single payment and be transparent to the policyholder. If the contract costs so clearly in mind will be the customers, it was for him to calculate whether the contract is economically meaningful. The risk one is economically necessary as detrimental given legal transaction the policyholder but then deliberately would. The Supreme Court was at the 20.03.2013 in two Revision procedure also deal with the question, whether additional cost compensation agreements are allowed.

In the process the AZ.: IV ZR 162/12 had the lower courts (LG Leipzig, 19.04.2012 3s 571/11;) AG Oschatz, Seattle Sounders 2 C-390/11) upheld the claim of the insurer on payment of the total cost in the procedure to the AZ.: IV ZR 265/12 was the insurer in the Court of appeal (LG Cottbus, 20.06.2012 1 S 142/11;) AG Lahiri 28.07.2011 20 C-226/10) remained unsuccessful. Shortly before the trial, the insurer has withdrawn his appeal against the repellent action judgment of the LG Cottbus, the dismissal was therefore valid. The second pending procedure the insurer at the hearing said the waiver of the claim pursued by him, and may require more from the respondent policyholder no further payment on the cost equalization agreement.


Check in and check-out are like a day. The times, in which the landlord private uses the apartment or unentgeltlichuberlasst to third parties, as well as empty life to a certain extent include attribution of the times for administrative purposes and for external use for administrative purposes. Its share is estimated either derSelbstnutzung according to the ratio to use by foreign tenants, if the use of the self is possible at any time. Is not measured the scope of auto use, it is 50% applied. To the The times of the actual rental and the vacancy rate of according to above Aufteilungbei of administrative purposes include third-party use.

Is self use renting third-party contractually limited, zahlenLeerstandszeiten total for foreign use. Note: it is possible to pronounce blackout periods to be Selbstnutzunganzumelden or even guests, renting through an agency the empty stand times allocated to pro rata administrative purposes. Example of empty life-sharing landlord A has transferred the mediation of his apartment in a holiday service organization of Cuxhaven. He has use of self in the brokerage contract expressly excluded. The apartment is rented in the year to 180 days to100 EUR, used A itself 30 days, 155 days stands empty.

Which only accounted for the rental, costs 2,000 EUR, the other costs (including depreciation) EUR 5,000. Rental income: 180 days 100 EUR = 18,000 EUR advertising costs: 1 fully into account. /.2.000 EUR 2 pro rata to consider the empty day only in the ratio of rental will because of the possible use of self to the actual total use (= 180 / 210) included in the hire period. 180 / 210 155 days vacancy = 132 days was a total 180 + 132 = 312 used days to rent the apartment. Other advertising costs 5,000 EUR 312 / 365 =. /.4.274 EUR 11.726 EUR income variation In the brokerage contract has A agreed a self use of the apartment for 30 days.

Section 34f GewO – An Overview

A table of contents to the new section 34f of the Gewerbeordnung since 01.01.2013 is now the new section 34f GewO nevertheless is still some uncertainty on the market or the active intermediaries. Background of the introduction of the scheme was the law on the amendment of the financial system mediator undVermogensanlagerechts from December 2011. The regulation in the context of financial supervision is extended with the inclusion of the standard in the GewO. The legislature has to make the goal of investor protection romance advice grippier for investors and to provide more comprehensive protection against grey market products. So apply now for banks and free agents in the marketing of financial products the same rules. Total comprehensive information, consulting and documentation requirements imposed on the financial system mediator. It is also an obligation for disclosure of commissions. With the tightening of product regulations, increased sales requirements and prospectus liability easier in practice should the information basis for a later Investment decision be extended.

So far, a scheme for financial investment intermediaries was only fragmentary in 34 c GewO with regulated. To push forward in the circle of financial investment brokers, intermediaries of relevant financial systems require now a commercial permit, as well as a corresponding registration. The licensing will be usually done by the Industrie – und Handelskammer. According to the definition introduced by the law itself is to understand who professional to unit certificates of a corporation as a financial investment intermediaries or investment joint-stock company, investments in closed funds or other assets provides consultations. A prerequisite for obtaining the required permission is own reliability and overall financial situation. Furthermore, apply new framework conditions in terms of professional indemnity insurance. An increase of the insurance policies is therefore inevitable. Finally, it must be observed from immediately certain minimum requirements with regard to qualifications.

Thus should be the practice-relevant and interesting feature it. Required the passing of a competence examination in the relevant industry and Chamber of Commerce, the both consists of a written and practical part. This a certificate of competence can be equated with the training in the relevant professional segment. The question is crucial for many an “old hares”scheme. Seasoned and experienced mediator can breathe for starters, because of a certificate of competence not only time, but also financially costly, there are exceptions. If a continuous independent or dependent activity as investment intermediaries or consultants since January 1, 2006, be carried out no further qualification checks, provided such evidence. Not insignificant problems, not only in terms of legal liability caused by the brokerage of financial products but Furthermore, and despite the introduction of section 34f of the GewO. The risks of a previous failed advice or violation of Information requirements are hardly narrowed by the amendment. So, the agent is to provide information to the investors, which include a comprehensive explanation of the risks, as well as all costs be borne by the investors perform. Difficulties arise especially when not explicitly predictable prices. In addition, the investor is at an early stage about possible commissions and resulting conflicts of interest to enlighten. Bernd rechtsanwalts GmbH Wilhelm-Weber-Strasse 39, 37073 Gottingen