A dispute has arisen in the area of tenancy law regarding notice periods, which affects not all, but a large number, of residential lease agreements. The dispute is based on the following situation:
Until August 31, 2001, graduated notice periods applied to unlimited residential leases, which were based on the duration of the lease at the time of termination. Depending on how long the tenancy had existed, the notice period for tenants and landlords was 3, 6, 9 or 12 months. This regulation was changed with effect from September 1, 2001, so thatremains for the landlord with staggered notice periods between 3 and 9 months, but the tenant can terminate the lease with a uniform, short notice period of three months, regardless of the term of the lease. According to a statutory transitional provision, this short notice period also applies to leases concluded before September 1, 2001, unless a longer notice period was previously "agreed by contract".
Therefore, if older rental contracts contain notice periods that legitimately deviate from the legal regulation at the time, these agreements continue to apply without further action. However, standard rental contracts often contain a literal or analogous repetition of the statutory provisions regarding notice periods.
A dispute has now arisen as to whether such a mention of the former legal regulation in the lease should only have a clarifying function without its own regulatory content or whether it is a contractual agreement between the parties to the lease, to which the tenant is also bound after September 1, 2001 according to the statutory transitional provision. The answer to this question is of considerable practical importance, since according to the first opinion, the tenant can also terminate tenancy relationships that have existed for decades with only a three-month notice period. According to the second opinion, however, the old statutory notice periods of up to 12 months remain in force if the tenancy agreement refers to this statutory regulation.
It is hardly surprising that this dispute exists between tenants and landlords and their associations. But the case law is not uniform either. For example, several Berlin district courts and the Steinfurt District Court have regarded the repetition of the previous legal regulation in the lease as a contractual agreement that also applies to terminations after September 1, 2001. Whether the contractual clause was preceded by proper negotiations between tenant and landlord is irrelevant. Even a provision included in a pre-formulated standard rental agreement is a contractual agreement that claims validity beyond September 1, 2001. (District Court of Charlottenburg, Az. 203 C 539/01 and 228 C 10/02, District Court of Schöneberg, Az. 103 C 521/01, District Court Neukölln, Az. 16 C 613/01, District Court Tempelhof-Kreuzberg, Az. 13 C 576/01, District Court Tiergarten, Az. 5 C 122/02, District Court Steinfurt, Az. 4 C 613/01)
In contrast, the Hamburg District Court ruled in a much more tenant-friendly manner in a comparable case (Ref. 815 b C 23/01). The court ruled that the reproduction of the former statutory notice periods does not preclude the application of the new, shorter notice periods if it was included in a standard rental agreement concluded before September 1, 2001 for clarification purposes only. However, this can be assumed, provided that there are no concrete indications that the parties deliberately included the relevant provision in the contract and did not just want to leave it to the statutory provision. If the legislator only wants the new notice periods to be applied to old contracts if there is no contractual agreement to the contrary, then it must have been referring to individually negotiated agreements. However, this does not include the simple use of a standard rental agreement. Only in this way can the legislative goal of providing the tenant with increased flexibility in the rental of living space due to constantly increasing mobility requirements be realized.
For the first time, a court of second instance, the Hamburg District Court, had to deal with the important legal issue (case no. 311 S 53/02). The appellate judges upheld the judgment of the Hamburg District Court submitted for review, so that for the time being the inconsistent case law remains in place. However, the landlord has lodged an appeal against the judgment of the Regional Court to the Federal Court of Justice (Ref. VIII ZR 240/02). Its clarifying decision is now eagerly awaited.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.