Termination of the lease agreement
August 6, 2009 | 25,00 EUR | answered by Andreas Scholz
Our tenant has terminated the lease agreement on time for 30.09.09 and now wants to stay for one more month. We already have a new tenant who wants to move in on 01.10.09. Can we possibly achieve, at this point in time, through an eviction lawsuit, that the new tenant can truly move into the apartment? What options do we have to guarantee to the new tenant that our current tenant will indeed move out by 01.10.09?
Dear inquirer,
First of all, if the tenant obstructs the use of the apartment by a new tenant by remaining in the apartment beyond the termination date, he is liable for damages to you according to §§ 546a, 571 para. 1 BGB, so he must continue to pay the rent. If the lease agreement with the new tenants has already been signed, you will be liable for damages if you cannot provide the living space to them at the agreed rental start date. However, you can recover this damage from the unauthorized tenant.
In the course of regular proceedings, obtaining a judgment for future eviction could indeed be difficult for you. However, through a temporary injunction under § 940a ZPO, you could promptly obtain the eviction of the living space, as remaining in the terminated apartment constitutes unlawful self-help. In this procedure, you must convincingly demonstrate that it is sufficiently likely that the current tenant will remain beyond the termination. If this is convincingly demonstrated to the court, it will issue a temporary injunction under § 940a ZPO.
I recommend advising the current tenant of the claims for damages and procedural costs that will arise for him, so that he refrains from remaining. Set a deadline for his response. If he does not respond or refuses to vacate the premises within the deadline, resort to the application for a temporary injunction under § 940a ZPO. I further recommend seeking legal assistance in making the application. The tenant is responsible for any costs incurred.
However, all of this requires that there are no compelling reasons for the tenant to remain. Whether such reasons exist depends on the individual case and must be presented by the tenant. If no compelling reasons are presented, the above will apply.
I hope I have been able to assist you. If you have any questions, please feel free to ask.
Kind regards,
Andreas Scholz, Attorney
