Background of the decision of the Federal Court of Justice
By resolution of February 2, 2023 (Case No.: VIII ZB 58/21), the Federal Court of Justice (BGH) addressed the question under which conditions landlords may be entitled to file an eviction action preventively against their tenants. The decisive factor in the underlying case was the tenant’s explicit announcement that he would not voluntarily surrender the rental object after termination of the tenancy, as long as no alternative accommodation had been found.
Initial situation: Termination and tenant’s response
At the center of the case decided by the BGH was the situation after receipt of the termination of a tenancy. The tenant then informed the landlord that, due to an as yet unsuccessful search for alternative accommodation, he did not see himself in a position to vacate and return the apartment as required. According to the court, this statement constituted an unequivocal refusal to comply with the owner’s claim for return.
Significance of the preventive eviction action
Civil procedure law generally allows for a preventive action to be filed even prior to the maturity of a claim for return, provided there are concrete indications that the debtor will not voluntarily fulfill their obligation. The BGH now clarifies that a tenant’s directly articulated intention not to vacate after the end of the tenancy may justify the issuance of a preventive eviction action. The prerequisite is that the landlord must expect that otherwise their right of possession could only be enforced belatedly or with additional effort, for example through renewed proceedings.
Clarification of the scope of application
The court emphasized that not every vague or even negative remark made by a tenant justifies a preventive eviction action. Rather, the content must show a specific and serious refusal. The decision therefore establishes an important distinction: only general or still non-committal statements are not sufficient to conclusively justify filing an action before the claim for eviction is due.
Impact on the relationship between landlord and tenant
Risks in case of delayed move-out
The BGH’s case law strengthens legal certainty for landlords in situations where a move-out after termination of the tenancy appears doubtful. The option of a preventive action allows landlords to potentially avoid time-consuming and costly delays, which can have significant economic consequences, especially in both commercial and private real estate sectors. Tenants are thus made aware of the consequences of an explicit refusal, as this can trigger eviction proceedings.
Impact on procedural law
The reliable applicability of the preventive action protects the procedural rights of landlords. They can now react even before the claim for eviction actually becomes due, provided a clearly declared refusal to perform has been made. The constructive interaction of substantive and procedural aspects is thereby emphasized: The empowerment to take preventive action serves effective legal enforcement, without fundamentally weakening tenant protection, since only serious and substantiated refusals can be used.
Distinction from comparable constellations
The decision of the Federal Court of Justice carefully differentiates between mere uncertainty on the part of the tenant and an assumed definite non-performance. It is also practically relevant that the preventive action must be expressly based on the prior announcement of non-performance. Declarations that are uncertain or subject to conditions are therefore not sufficient. The landlord thus continues to bear the burden of demonstration and proof of the seriousness of the refusal.
Practical significance
The current decision is particularly significant for companies and wealthy private individuals, provided they, as landlords, are confronted with resistance to a timely vacating already at the time of notice of termination. A clear, prior communication by the tenant that vacation will not occur without adequate replacement opens the procedural path for the landlord to assert his claim for return in court.
Conclusion and outlook
With its resolution of February 2, 2023, the BGH has created a practically relevant framework within which landlords can in the future obtain legal certainty more quickly in the event of foreseeable refusals of performance. However, applying this case law requires careful documentation and assessment of each individual tenant’s statements and must always be evaluated in the context of the specific case. While the judgment creates legal certainty for landlords, the tension with tenant protection must be considered in each individual case.
The legal assessment and its far-reaching consequences for individual contractual relationships can be complex. Should you have further legal questions regarding eviction actions and tenancy arrangements, the Rechtsanwalt at MTR Legal are available nationwide and internationally as your contacts.
