Maternity leave when receiving the termination letter / Special termination right due to rent increase
July 7, 2009 | 35,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
On Friday, May 29th, 2009 in the afternoon, I received a written (delivered by messenger) rent increase request from the landlord.
I responded to this with my termination citing § 561 BGB at the earliest possible date. By using the special termination right, the tenancy agreement should therefore be terminated by the end of the month of July.
I sent my termination via email, fax, and also by post on May 30th. The email and fax were confirmed received, however, the identical letter sent by post was only delivered on Tuesday, June 2nd due to the Whit Monday holiday.
The landlord, on the other hand, also only accepts a termination by the end of August with reference to § 561 BGB, since the termination letter was received in June. Justification: Unlike § 573c BGB, there is no mention of a grace period in § 561 BGB.
I responded to the landlord in writing as follows:
"My termination letter sent by post reached you within the grace period of 3 working days, which you also confirm. The grace period means that a delivery of my termination until June 4th (12:00 pm) is considered a timely termination for the month of May. Formally, the grace period from June 2nd to June 4th is therefore counted towards the month of May.
This means that May is considered the month of delivery and therefore also as the basis for the calculation of the "end of the following month". This results in the tenancy agreement ending on July 31, 2009.
Regarding the grace period, I refer to the Federal Court of Justice (BGH), judgment of April 27, 2005 - VIII ZR 206/04 (tenancy law - notice period: calculation of the so-called grace period): "When calculating the so-called grace period of three working days, which the parties to a residential tenancy agreement have to comply with the notice period, Saturday must be counted as a working day unless the last day of the grace period falls on that day.
The judgment of the Federal Court of Justice generally speaks of a "notice period". Your own interpretation that the grace period is not applicable in my case or in the exercise of the special termination right is not comprehensible. With your interpretation, the special termination right with a shortened notice period of 2 months becomes absurd. According to your view, the landlord only needs to take away the possibility for the tenant to terminate by the end of the month - and suddenly a 2-month notice period becomes a 3-month notice period.
To prevent landlords from taking this somewhat peculiar approach, the courts have granted the grace period.
Furthermore, I refer to § 242 BGB. On May 30th, I sent you my termination in advance via fax and also by email - in response to your rent increase request delivered by messenger (on Friday, May 29th after 12
Dear inquirer,
Thank you for your inquiry!
I would like to address your questions considering your input and the details you provided as follows:
First of all, I want to express that the letter you prepared is highly professional and, in my opinion, accurately reflects the legal situation regarding your case.
Unfortunately, the landlord's reliance on the formal requirement of § 568 BGB in your case is not considered disloyal and therefore does not violate § 242 BGB in my opinion. Disloyalty would occur if it is not just difficult but unbearable for the tenant to rely on the formal requirement.
Recognized cases of disloyalty include situations where relying on the formal requirement threatens the landlord's existence, or the landlord intentionally deceived the tenant about the formal requirement of § 568 BGB before the termination, for example by stating that a termination via email or fax is sufficient.
The formal requirement is also applicable to your case since § 568 BGB also covers terminations according to § 561 BGB (see Palandt BGB, § 561 para. 8 in connection with § 542 para. 15).
However, this does not apply in your case.
The key question is whether the termination by mail falls within the 3-day period of § 573c BGB or not.
This would require that § 573c BGB is applicable to a termination according to § 561 BGB. However, this is not the case, as § 573c BGB only refers to regular terminations and not extraordinary terminations, such as those covered by § 561 BGB (see Palandt BGB, § 573 c para. 4).
Therefore, the notice period (3 days) does not apply to your termination.
Therefore, the notice period must now be calculated based on § 561 BGB.
The wording of this provision is somewhat misleading and easily leads to misinterpretations.
There are two starting points for calculating the deadline:
1. The so-called consideration period (...the tenant can consider the termination until the end of the second month after receiving the notice...)
2. The specific notice period, which directly follows the consideration period and thus extends it (see Palandt, BGB, § 561 para. 6).
First, the consideration period must be determined. This starts from the receipt of the landlord's letter. This was on 29.05.2009, so the consideration period ran until the end of July.
The two-month notice period is then attached to this.
In plain terms, this means that if you as the landlord terminated between 29.05. and 31.06., the tenancy will end at the end of September 2009.
Since the written termination in your case was before 31.06.09, the termination is possible at the end of September 2009. Since the landlord even accepted the termination a month earlier, you will fortunately be released from the lease earlier than legally required.
I hope I have provided you with an initial legal orientation and wish you continued success in your actions!
I would like to conclude with the following advice:
The legal information I provided is based solely on the facts you provided. My response is only a first legal assessment of the situation and cannot replace a comprehensive examination of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope my explanations have been helpful to you. Feel free to contact me through the follow-up option on this platform or via my email address.
I wish you a pleasant Tuesday evening!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/57774
