The tenant can terminate a commercial lease without notice for good cause. An incorrect service charge statement can, according to the BGH ruling, be a good reason (Ref.: XII ZR 11/20).
Both tenants and landlords can terminate a commercial tenancy extraordinarily without notice for good cause, if the continuation of the tenancy has become objectively unreasonable for a contracting party, explains the commercial law firm MTR Rechtsanwälte.
In the case before the BGH, the tenant had rented a shop in a shopping center. Since the fire alarm transmission was not functioning properly, the landlord had to deploy additional fire guards. He included the costs for this as well as the costs for furnishing a food court in the service charges. The tenant opposed this and terminated the lease due to the incorrect service charge statement.
However, the Berlin Chamber Court deemed the termination ineffective. Although the landlord wrongly charged the tenant for the furnishings of the food court and the fire guard, and this mistake was clear with the tenant being disadvantaged in a seven-figure amount, this was not sufficient for a termination without notice, according to the KG Berlin. The tenant did not assert that the landlord acted with intent or deceptive intent.
The BGH, however, saw things differently in its judgment of October 6, 2021, and overturned the decision of the Berlin Chamber Court. A good reason for extraordinary termination without notice is present if, considering all circumstances of the individual case, particularly the fault of the contracting parties, and weighing the mutual interests, it can no longer be reasonably expected for the terminating party to continue the tenancy even until the end of the notice period or other termination of the tenancy. Financial offenses to the tenant’s detriment constitute such an important reason for termination, according to the BGH.
Dishonest actions by the landlord, such as intentionally incorrect service charge statements, can therefore justify a tenant’s termination without notice, the Karlsruhe judges made clear. This applies in particular if the landlord persists in an unjustifiable manner in the incorrect billing even after corresponding objections by the tenant, according to the BGH.
Experienced attorneys in commercial tenancy law can provide advice.
