# Cure Payment Does Not Affect Ordinary Termination > The BGH confirms: Payment within the cure period generally invalidates only termination without notice, not ordinary termination for rent arrears. Source: https://www.mtrlegal.com/en/cure-payment-does-not-affect-ordinary-termination/ · Language: en · Updated: 2026-10-29 --- ## Subsequent payment invalidates only termination without notice The Bundesgerichtshof (BGH, Federal Court of Justice) has upheld its case law on payments made within the statutory cure period in cases involving rent arrears. The subsequent settlement of the arrears generally invalidates only a termination without notice. An ordinary termination declared at the same time remains unaffected (BGH, judgment of 30 September 2026 – VIII ZR 21/26). Nor did the amendment to tenancy law planned by the Bundesregierung (Federal Government) prompt the Eighth Civil Senate to reach a different assessment. A draft act does not yet constitute applicable law and therefore cannot alter the current legal position. ## Scope of the statutory cure period ### Protection against the consequences of extraordinary termination Under § 569 Abs. 3 Nr. 2 BGB (German Civil Code), an extraordinary termination due to default in payment becomes ineffective under the conditions stipulated therein if the landlord is paid no later than two months after the eviction claim becomes pending or if a public authority undertakes to make payment. For years, the BGH has interpreted this provision as applying exclusively to the effect of a termination without notice under § 543 Abs. 2 Satz 1 Nr. 3 BGB. An ordinary termination under § 573 Abs. 1 Satz 1, Abs. 2 Nr. 1 BGB, issued in the alternative and based on the default in payment, does not generally become ineffective as a result of subsequent payment. The BGH had already confirmed this interpretation in earlier decisions, including its judgments of 5 October 2022 – VIII ZR 307/21 and 23 October 2024 – VIII ZR 106/23. The lower courts have largely followed this assessment. ### Contrary view of the LG Berlin II By contrast, the 66th Civil Chamber of the LG Berlin II (Berlin Regional Court II) has for several years taken the view that timely payment within the cure period may also eliminate the consequences of an ordinary termination based on the same rent arrears. According to its interpretation, the protection of the tenancy intended by the cure-period provision should also extend to ordinary termination. The Chamber again based its decision of 14 January 2026 – 66 S 18/25 on this view. The BGH did not follow this interpretation in the subsequent appeal on points of law. ## Default in payment resulted in two notices of termination ### Tenant promptly settled the arrears The proceedings concerned the tenancy of an apartment in Berlin. The tenant was two months in arrears with the rent. On 8 February 2024, the landlord therefore terminated the tenancy without notice and, in the alternative, by ordinary notice. Only a few days after receiving the notice of termination, the tenant transferred the outstanding rent payments. In each case, he deducted a small amount because the balcony could not be used. Scaffolding had been in place on the building since January 2024, preventing use of the balcony. ### Eviction action initially unsuccessful The landlord subsequently brought an eviction action. The Amtsgericht Kreuzberg (Kreuzberg Local Court) dismissed the action. The appeal before the LG Berlin II was likewise unsuccessful. The appellate court adhered to its view that full payment of the rent arrears within the statutory cure period eliminated the effects of both the extraordinary and the ordinary termination. On the landlord’s appeal on points of law, the BGH set aside the appellate judgment. ## BGH confirms its established interpretation ### No extension to ordinary termination According to the BGH’s decision, § 569 Abs. 3 Nr. 2 BGB applies only to extraordinary termination. The provision applies neither directly nor by analogy to an ordinary termination based on a culpable breach of duty. The subsequent settlement of the arrears therefore does not automatically remedy the breach of duty on which the landlord based the ordinary termination. In the Senate’s view, the legislature primarily intended to avert the considerably more onerous consequences of the immediate termination of the tenancy by extraordinary termination. Applicable law does not provide equivalent protection against ordinary termination. The BGH held that the legal position would remain unambiguous until new legislation was enacted. Accordingly, payment within the cure period generally does not affect the validity of an ordinary termination. ### Planned legislative amendment has no bearing on the dispute The [Federal Government’s draft amendment](https://dserver.bundestag.de/btd/21/068/2106807.pdf) to the law governing residential and commercial leases provides for the protection to be extended in future to ordinary terminations due to default in payment. In this context, the BGH expressly addressed the planned provision of § 573 Abs. 4 Satz 3 BGB-E (draft German Civil Code). The Senate attached no significance to this planned provision when assessing the specific case. Until the legislative process has been completed and the new provision has entered into force, the current legal position remains decisive. ## Validity of the ordinary termination remains to be examined ### Good faith may preclude reliance on termination in individual cases The confirmation of the established case law did not directly result in an eviction order. The BGH found that the dispute was not yet ready for a final decision. Even though payment within the cure period does not invalidate the ordinary termination, special circumstances in the individual case may, under § 242 BGB, preclude the landlord from relying on its terminating effect on grounds of good faith. It must also be examined whether the tenant is culpably responsible for the breach of duty underlying the termination. The LG Berlin II had not made sufficient findings in this regard. This was consistent with its own legal view because it had already considered payment within the cure period sufficient to eliminate the effect of the ordinary termination as well. ### Remittal to a different chamber The BGH set aside the appellate judgment and remitted the case to a different chamber of the LG Berlin II for further findings of fact and a new decision. In the resumed appellate proceedings, the issues to be clarified include, in particular, the tenant’s culpability and whether insisting on the ordinary termination may be contrary to good faith. It has therefore not yet been determined whether the tenant must vacate the apartment. The BGH’s judgment does not contain an eviction order but rules on the general scope of payment within the cure period and the further course of the proceedings. ## Tenancy law reform is undergoing the legislative process The Federal Government’s draft provides for several amendments to tenancy law: - In future, a subsequent payment made within the statutory cure period is intended to cover not only extraordinary termination but also ordinary termination due to default in payment. - The permanent use of residential property for short-term or holiday rentals is to be restricted. A short-term tenancy is generally to last no more than six months and may be extended—even more than once—to a total of up to eight months; the tenant must also have a specific temporary need. - For index-linked rents, if the consumer price index rises by more than three per cent, only half of the portion exceeding that threshold is to be taken into account. - For furnished apartments, the furniture surcharge is to be disclosed and limited to no more than one per cent per month of the furniture’s current value. - The scope for rent increases following modernisation measures is to be expanded in favour of landlords. At its meeting on 12 June 2026, the Bundesrat (Federal Council) submitted its opinion on the draft pursuant to Art. 76 Abs. 2 GG (German Basic Law). Among other matters, it requested that incentives for letting vacant residential property be created during the further proceedings and that additional administrative burdens be avoided. The Bundestag (German Federal Parliament) considered the draft on 9 July 2026. The lead committee is the Ausschuss für Recht und Verbraucherschutz (Committee on Legal Affairs and Consumer Protection), which held a [public hearing](https://www.bundestag.de/dokumente/textarchiv/2026/kw42-pa-recht-mieten-1221718) on 14 October 2026. The assessments of the seven experts heard varied. Real estate associations objected in particular that the draft envisaged additional regulation of existing tenancies instead of focusing on the creation of more housing. As the Bundestag has not yet adopted the reform, the date on which it may enter into force remains uncertain. Substantive amendments may also be made during the further parliamentary proceedings. ## Significance for tenancy law disputes The decision draws a clear distinction between the legal consequences of extraordinary and ordinary termination. A timely subsequent payment may render a termination without notice ineffective in accordance with § 569 Abs. 3 Nr. 2 BGB, but under current law it generally leaves unaffected an ordinary termination declared alongside it. Whether the latter actually terminates the tenancy in the specific case depends on additional requirements and the circumstances of the individual case. MTR Legal advises landlords and tenants on the legal assessment of payment arrears, notices of termination and eviction proceedings. Further information is available under [Real Estate Law Advice](https://www.mtrlegal.com/rechtsberatung/immobilienrecht/).