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Created on Wednesday, 18 March 2009 11:47

Last Updated on Friday, 28 December 2012 18:54

One-sided Termination Exclusion

Is it legal that only the landlord has the sole right to exclude termination of the contract by the tenant? The BGH clarifed this issue in its decision of November 19, 2008(re VIII ZR 30/08).

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A tenant rented an apartment and the contract was closed in a form lease contract of January 17, 2005. §2 of said contract reads:

"Es wird vereinbart, daß der Mieter auf sein ordentliches Kündigungsrech t ein Jahr lang, ab Mietbeginn, verzichtet und er in dieser Zeit demnach nur außerordentlich kündigen kann!" "It is agreed that the tenants waives his normal right to ordinarily terminate the lease for one year, and during the waived time he would be limited only to extraordinary termination!"

On July 17, 2005, the tenant terminated the contract as of end September 2005 - following the statutory rules (§573c BGB). The landlord, however, did not accept the termination because of the contractual agreement excluding termination for the first year.

The Federal Court of Justice agreed with the tenant. The one-sided exclusion of giving notice unreasonably disadvantages the tenant in terms of §307 I 1 BGB. Therefore this stipulation is null and void. Such exclusion is not generally invalid. A landlord can successfully use such agreement when the tenant receives some kind of legal advantages. So what happens when this contractual stipulation on termination is not applicable? The statute, i.e. the Civil Code, holds sway.

Hint:

Not all stipulations excluding or waiving the termination of a rental contract are illegal.

´ aufzählung beginn´ Tenant and landlord can mutually agree to exclude giving notice for at most four years - even in standard contract (BGH, judgment of April 4, 2005 re VIII ZR 27/04).

In a rent with a fixed schedule of increases´ StaffelmietVStaffelmiete´ StaffelmietV´´ und die Übersetzung verlinken zum content, ´ , it can be one-sidedly determined that the tenant may not terminate (BGH, judgment of November 11, 2008, re VIII ZR 270/07) - but only up to four years (BGH judgment of June 14, 2006 re VIII ZR 257/04).

´ aufzählung ende´ Via an individual agreement between a landlord and the tenant, it is possible to exclude termination for a period up to five years (BGH, judgment of December 22, 2003 re VIII ZR 81/03). And then both parties are stuck to another for these five years...