The tenant can terminate a commercial lease contract without notice for good cause. An incorrect service charge statement can be a good cause according to a ruling by the BGH (case number: XII ZR 11/20).
Both tenants and landlords can terminate a commercial lease extraordinarily without notice for good cause if continuing the lease relationship becomes objectively unreasonable for one party, explains the commercial law firm MTR Rechtsanwälte.
In the proceedings 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 employ additional fire guards. He also allocated these costs to the operating costs, along with the costs for furnishing a food court. The tenant objected and terminated the lease due to the incorrect service charge statement.
However, the Chamber Court of Berlin considered the termination to be invalid. While the landlord had wrongly allocated the costs for furnishing the food court and the fire guards to the tenant, which clearly benefited the landlord with a seven-digit sum, this alone was not sufficient for a termination without notice, according to the KG Berlin. The tenant had not demonstrated that the landlord acted with intent or deceit.
The BGH, however, saw things differently with the judgment of October 6, 2021, and overturned the decision of the Chamber Court of Berlin. A good cause for an extraordinary termination without notice exists if, considering all the circumstances of the individual case, particularly the culpability of the contracting parties, and balancing the mutual interests, the continuation of the lease relationship, even just until the end of the notice period or other termination of the lease, can no longer be reasonably expected from the terminating party. Economic crimes against the tenant constitute such an important reason for termination, according to the BGH.
Dishonest practices 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 is particularly true if the landlord continues to adhere to the incorrect billing in an indefensible manner after the tenant’s objections, according to the BGH.
Lawyers experienced in commercial tenancy law can provide advice.
