Schufa entry due to rental debt.
February 27, 2011 | 35,00 EUR | answered by Jan Wilking
Hello,
I would like to briefly outline the situation before asking my questions.
In mid-January of this year, my advisor at the bank called me and asked about an entry in the Schufa (credit bureau) related to my wife. Since we did not know where this came from, we obtained a self-disclosure. The claim comes from a housing company, which had the claim legally certified by the local court. It concerns rent arrears for October and November 2010. My wife lived in an apartment owned by the company until January 2006, together with her former partner. She moved out in January 2006 and terminated the lease, but her former partner unfortunately did not sign the termination. There was never any response to this letter. The termination also included the new address. No payment requests were ever sent to this address, and now the housing company denies receiving such a termination, even though I can witness it being dropped into the company's mailbox.
I would now like to know if this termination would be valid if the company had received it and not objected? Since they are named as joint debtors in the lease agreement and would have to terminate jointly.
Can anything be done about the Schufa entry, as she never received a payment request?
If the lease agreement were to be contested due to invalid clauses (e.g. rigid renovation obligations) and successful, it would be invalid. Would the termination then be valid, as the clause naming them as joint debtors would also be invalid?
Can one resist the claim at all, since my wife has not lived there for years?
Dear inquirer,
I am happy to answer your inquiry taking into account the description of the situation and your input as follows:
If both persons were listed as contracting parties in the rental agreement, your wife could not terminate the rental agreement alone. In this case, there is an ineffective partial termination to which the company did not have to respond. Only if your wife stated in the termination that she was also terminating on behalf of her former partner, it may have become effective (since the company did not immediately reject the termination due to lack of power of attorney).
If the rental agreement contains an ineffective clause, usually the entire rental agreement is not invalid, but only that particular clause. The legal regulation then takes the place of this clause. For example, in the case of an ineffective renovation clause, the legal regulation obliges the landlord to renovate. The standard rental agreement remains valid. But even if the entire rental agreement were null and void, the legal regulations for a civil law partnership would apply, which also require a joint termination.
Since rent payments are typically due monthly on a specific date and both persons are joint debtors, there was no need for an explicit payment request to your wife. Therefore, the demand is likely legitimate. Apart from that, it is usually very difficult (e.g. in cases of intentional immoral harm) to challenge an already established claim.
Therefore, I see little hope in challenging the demand.
Your wife should urgently work towards a joint termination of the rental agreement to prevent such incidents in the future. She should also insist that her partner settles the amount, as there is a risk that the company may enforce against your wife based on the established claim. If an agreement cannot be reached, your wife should try to establish her claim against your acquaintance. This claim can also serve as a basis for demonstrating a legitimate interest in blocking the SCHUFA entry.
I hope this provides you with some initial helpful guidance. If you have any questions, please feel free to ask.
Please note that in this initial consultation without full knowledge of all circumstances, I cannot provide a definitive advice. If you require a final assessment of the situation, I recommend contacting a lawyer to discuss the matter in detail with access to all relevant documents.
Best regards
