In the case of a termination without notice of commercially rented premises due to defects, a prior warning is required. This has been confirmed by the Brandenburg Higher Regional Court (Case No.: 3 U 82/19).
Indefinite commercial lease agreements can be terminated ordinarily. If the parties have not contractually stipulated the notice period, the statutory notice period of six months pursuant to § 580a BGB applies. Under certain conditions, a commercial lease can also be terminated extraordinarily. An important reason for extraordinary termination by the tenant can, for example, be the repeated occurrence of defects in the leased property. In most cases, however, a prior warning is necessary for the extraordinary termination to be effective, explains the commercial law firm MTR Rechtsanwälte.
This is also demonstrated by a ruling of the Brandenburg Higher Regional Court on July 7, 2020 (Case No.: 3 U 82/19). Here, the tenant had terminated her commercial lease extraordinarily and without notice due to repeatedly occurring defects in the leased property. In the premises, there had been seven incidents of water ingress over approximately twelve years. Each time, the landlords responded to the damage with repairs and cleaning works.
Since the defect apparently could not be remedied, the tenant responded to the next water ingress with a termination without notice of the lease. She did not issue a prior warning.
The landlords did not recognize the termination without notice and sued for payment of the outstanding rent. Successfully. As the Regional Court of Cottbus had already decided, the Brandenburg Higher Regional Court also ruled in the appeal proceedings that the termination without notice was invalid due to the absence of a prior warning.
Even though the water damage occurred more frequently, the warning was not dispensable. It could not be assumed that it would have been unsuccessful, according to the Higher Regional Court. Since the landlords had previously responded to damage reports with repairs every time, they had not definitively refused the rectification of defects, the court further explained. Moreover, the scope and impact of the damage incidents were not so significant that a further – at least short – wait after setting a deadline would have been unreasonable for the tenant.
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