Action of eviction

Action of eviction / Räumungsklage

May 25, 2022

If a lease ends by notice of termination, a termination agreement or, in the case of a fixed-term tenancy, by expiry of time, the tenant must move out.

According to Section 546 (1) of the German Civil Code (Bürgerliches Gesetzbuch = BGB), the tenant is obliged to return the rented property after the end of the tenancy. Whether the lease has actually ended depends on whether the termination or the limitation of the tenancy agreement was effective. This must be examined in each individual case. Returning the flat is understood to mean "evicting" the flat. "Eviction" means, that the tenant leaves the flat and the landlord/landlady* can actually access the flat again. If the tenant does not leave the flat voluntarily after the end of the lease, the landlord must file an action for eviction. There are many reasons for tenants not to vacate voluntarily: for example, if the tenant considers the termination invalid or if he simply can not or does not want to move out. Therefore, if the tenant receives a termination notice that he considers invalid, he does not have to take action against the termination notice. In such cases, the tenant can wait for the eviction action and raise his objections against the termination there.

24-Immobilienrecht-Website.jpg#asset:5646


If the eviction action is successful, the landlord can have the flat evicted on the basis of the positive verdict of the eviction action - if necessary by means of coercion. The landlord can not evict the tenant himself, e.g. by replacing the locking system. This would constitute a so-called "unlawful interference with possession” according to Section 858 BGB, against which the tenant could take legal action, even if the termination was lawful.

The landlord will be successful with his action for eviction if the tenancy has been effectively terminated. Thus, if the landlord terminates the lease, the court will assess the effectiveness of the termination. The action for eviction must be brought before the court in whose district the flat or house to be evicted is located.

The court then examines whether there were grounds for termination that justify the termination.

Termination for default of payment

In the case of terminations due to the tenant's default in payment under section 543(2) no. 3 BGB, the special provision of section 569(3) no. 3 sentence 1 BGB is of great importance, especially in eviction proceedings. Even if the termination under Section 543 (2) no. 3 BGB is effective because the tenant is in arrears with the payment of rent or a not insignificant part of the rent for two consecutive dates, the tenant can subsequently "render the termination ineffective". This is regulated by Section 569 (3) no. 3 sentence 1 BGB. According to this, a termination due to default of payment according to § 543 para. 2 no. 3 BGB " becomes ineffective if, at the latest by the end of two months after the eviction claim is pending, the lessor is satisfied or a public authority agrees to satisfy the lessor with regard to the rent due and the compensation due under section 546a (1)". The tenant can therefore pay the outstanding rent even during the eviction action, so that the termination becomes ineffective and the eviction action is unsuccessful.

What is significant about the " period of grace" just mentioned is that this cannot be repeated endlessly. Pursuant to Section 569 (3) BGB, the payment of arrears only results in the invalidity of the termination if the termination was not preceded by a termination that had become invalid pursuant to the first sentence of Section 569 (3) of the German Civil Code (BGB) no more than two years previously. The amount in dispute of the action for eviction is calculated in accordance with § 41 (2) German Legal Cost Act (Gerichtskostengesetz = GKG) on the basis of one year's rent. The net cold rent is to be regarded as the remuneration within the meaning of § 41 (2) sentence 1 GKG. Pursuant to section 41 subsection 2 sentence 1 in conjunction with section 41 subsection 1 sentence 2 GKG, ancillary costs are only taken into account if they have been agreed as a lump sum and are not to be settled separately.

You have bought a rented flat and want to terminate the tenancy agreement or you want to have the legality of a termination checked? Contact us.

* If, for reasons of simplification, we use the generic masculine or the generic feminine in future, all genders are expressly meant and included.