Notice period on an apartment rental contract

32 posts in this topic

Our rental contract states:

 

Verträge von unbestimmter Dauer

Das Mietverhältnis läuft auf unbestimmte Zeit und kann von jedem Teil zum Schluss eines Kalender-monats unter Einhaltung einer Frist von 3 Monaten gekündigt werden.

... ...

Schriftform der Kündigung

Die Kündigung muss schriftlich spätestens bis zum dritten Werktag eines Kalendermonats erfolgen. Für die Rechtzeitigkeit der Kündigung kommt es nicht auf die Absendung, sondern auf die Ankunft des Kündigungsschreibens an.

 

which I understand to mean:

Contracts of indefinite duration

The lease runs for an indefinite period and can be quit by any party at the end of a calendar month with a period of 3 months' notice.

... ...

Writing of Termination

The notice of termination must be submitted in writing no later than the third working day of a calendar month. For the timeliness of the notice it depends not on the dispatch, but on the arrival of the written notice of withdrawal.

 

We would like to leave on March 31st. Accordingly we served notice on our Landlord by leaving the letter outside his front door (he lives upstairs) on January 1st 2009. At the time he was on holiday skiing, and did not return until Jan.9th; but he didn't tell us he was going away, and we have no means of contacting him other than email or going upstairs, and we don't have anyone else to contact in his stead, so we decided not to worry about this.

 

Anyhow, he eventually got round to replying to us on his return:

"Your notice has not arrived here in due time for quitting the agreement on March 31. In the rental agreement it says that you have to submit the notice at least three months ahead on the third working day of the month at the latest, this would have been on Dec.3 2008. Therefore you must pay for and can use the apartment until April 30 2009".

 

I wrote a carefully phrased email asking for an explanation. He replied:

"Concerning the notice: the rental contract says the following:

In §2.1 it determines, when you can leave the contract (only at the end of a month) and the fact, when at the latest you have to give notice (at least three months in advance). Meaning, if you want to leave at the end of March you have to give notice in December.

In §2.3 the agreement says: the notice has to be in writing and needs to arrive on the third working day of the month. SInce it does not say "of the following months after the 3-months deadline" or anything like that it clearly has to arrive in December, in this case."

 

We think he is trying it on, but unfortunately our German is not good enough to be certain that our translation of the relevant paragraphs is exactly correct. We would be very grateful if someone would determine this for us please.

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According to the provisions you quoted, any termination delivered after 31 December 2008 can only become valid after 31 March 2009. You terminated the lease on 1 January 2009, within first three working days of the month from whose end on the three months notice has to be given.

 

He is being fair, not claiming late receipt of the termination due to his absence. As stated in the lease, the date of delivery is relevant.

 

Disclaimer: By all means, contact the Mieterverein or a lawyer, but I'm afraid that your landlord has a strong case based on the wording in the lease.

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To anybody else ever giving notice:

ALWAYS (no matter how well you get on with your landlord), always submit your notice of termination in writing, by registered post (Einschreiben) with return notification of delivery (Einschreiben mit Rückschein).

In the case of the latter you'd get detailed information about the date and time of delivery or attempted delivery. In a case like the one here, the documented attempt to deliver the notice of termination would shift the responsibility back to the landlord, who has a duty to be "servable" at all times.

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No, he does not have to be available at all times. If he goes on a three-month cruise and the tenant drops the notice into the mailbox on day 2 of the cruise with a witness to confirm delivery the termnation is valid. It's delivery, not receipt, that is relevant.

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I googled the sentence about the termination. Came up with the following amongst others:

 

"Diese besagen, dass die Kündigung spätestens am 3. Werktag des Monats auf den letzten des übernachsten Monats gekündigt werden kann, also spätestens am 3.4 auf den 30.06."

 

I would read this as meaning that up to three days into the new month still counts as within the old month (Karenzzeit).

 

Agree that date of delivery is relevant, however you made it hard for yourself to prove it.

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Interesting, Holstein; do you have a link? It sounds like something from a forum but it's definitely worth looking into.

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Your landlord is wrong and probably doesn't understand his own contract ;)

 

What he wants would basically be a 4 month notice period. But like already said, go to the mieterverein and let them have a look at it, they can also write a nice letter to your landlord.

 

Most rental contracts use an easier phrase like "spätestens am 3. Werktag eines Kalendermonats für den letzten Tag des übernächsten Kalendermonats gekündigt werden" Which is basically the same without that confusion.

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I would suggest your rental contract is not clear - when it doubt or in conflict then legally enforceable limits apply. § 573 c Abs. 1 BGB clearly states that you must cancel in writing by the third working day of the month to terminate the contract on the month after next, so in your case by January 7, 2009 to terminate by March 31. (January 1st, 3rd, 4th and 6th were not working days this year - hence January 7th is the third working day of this particular month). As others have stated, you do need proof that your cancellation was delivered by that time, and this may (legally) be your biggest issue.

I'd start by appealing to the landlords common sense - is it really a big deal to him whether you leave on March 31 or April 30? It's only a month for God's sake - I'm sure he can find replacement tenants in the time available (or maybe you can?). It would save a lot of hassle for both of you to reach a mutual and friendly agreement.

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You are in the right just get someone you know to confirm that the letter was delivered in that time stated.then bobs your uncle.Do niot however expect to get your kaution back without a fight

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I've got my head around it now. The 3rd working day and the end of the month were getting me confused, my first evaluation was wrong. As long as you delivered the termination by the 3rd working day of January, i.e. 5 January, the termination per 31 March is valid.

 

Caveat! According to a Supreme Court decision Saturday is a working day under the provisions of the law and counts in the Karenzzeit (respite period) unless the Saturday itself is the last day of the Karenzzeit, then it ends on the next working day.

 

 

Der Bundesgerichtshof (Urteil vom 27. April 2005, Aktenzeichen VIII ZR 206/04) hat entschieden, dass der Sonnabend bei der Berechnung der sogenannten Karenzzeit von drei Werktagen, die den Parteien eines Wohnraummietvertrags zur Wahrung der Kündigungsfrist zusteht, mitzuzählen ist, weil er ein Werktag im Sinne der gesetzlichen Regelung ist.

Still and always, get proper legal advice either from the Mieterverein or a lawyer. And while you're at it, check your lease for the provisions regarding renovation and cleaning.

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get someone you know to confirm that the letter was delivered in that time stated.

However:

 

 

we served notice on our Landlord by leaving the letter outside his front door

An unscrupulous landlord (i.e. ANY German landlord) might insist that he never received the letter. "The Putzfrau or some kids must have removed it", he might argue.

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And the only witness is his wife who would say anything.

Nope, the landlord has already confirmed receipt, claiming that it was too late and should have been delivered in December 2008. He fell into the same trap as I did.

 

The termination period is three months. Three months counting backwards from 31 March is 1 January, the day the termination was delivered. Of course, delivering the termination much earlier than the last possible date (5 Jan 2009 as stated above) would have been a good idea, but hindsight is always 20/20.

 

Ask a professional.

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No, he does not have to be available at all times. If he goes on a three-month cruise and the tenant drops the notice into the mailbox on day 2 of the cruise with a witness to confirm delivery the termnation is valid. It's delivery, not receipt, that is relevant.

I didn't say he had to be available, I said he had to be "servable". It's the same as being "deliverable". Your example about the witnessed delivery is fine as long as you've arranged for a neutral witness to be present. Taking your best friend along isn't necessarily the best idea. The postal service is seen as being neutral which is why it's recommended and sensible to do it that way.

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An unscrupulous landlord (i.e. ANY German landlord) might insist that he never received the letter. "The Putzfrau or some kids must have removed it", he might argue.

But in this case it's clear he received the letter. He's responded to it. The real issue is proving when it was delivered. If he wasn't there on January 1st, was he there on December 31st? He seems to think the cancellation should have arrived in December. We seem to think it should have arrive by the 3rd working day of January to be valid for termination on March 31st. Either way it's likely he was not around to receive it on either day, so it's back to unbiased proof of delivery. I still think a quiet word with him would help to see if common sense can prevail. Arguing over a few days either way is senseless.

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I let my tenants give 30 days notice to anytime. If they want to leave mid month fine. Its of no advantage to me to have 3 months notice, and it makes a good impression on the tenants. Girlfriend who's German thinks I'm mad because I have the right to demand 3 month's notice. Can't make a German understand that there's no advantage in insisting on a right that benefits nobody.

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I do the same for my tenant (well actually end of next calander month). The only drawback is getting someone else to take the flat and not to leave it empty (in order to keep up mortgage payments), otherwise I totally agree that it's better to be flexible. Better to have happy tenants, that way everyone has less problems.

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I'm posting this so that future readers may know how this all turned out. Please feel free to correct my crap translation.

 

The MieterVerein have spoken:

 

"Ihr Mietvertrag ist gar nicht unklar:

Unter Zugrundlegung einer 3-Monatigen Kündigungsfrist, hätte Ihre Kündigung bis zum Montag, den 05. Januar bei Ihrem Vermieter eingehen müssen, damit

der Januar noch zur Kündigungsfrist hinzuzählt und dass Mietverhältnis zum 31.03.2009 beendet ist.

Ist der Vermieter im Urlaub, so muss er dafür sorgen, dass er auch weiterhin von seiner Post Kenntnis nehmen kann.

Wichtig:

Sie müssen aber den rechtzeitigen Zugang Ihrer Kündigung beweisen können. Haben Sie einen Zeugen für, wann Sie Ihrem Vermieter die Kündigung hingelegt

haben? Wenn nein (wenn also die Kündigung von niemandem bemerkt über den 05.01.2009 hinaus herumlag), müssen Sie sich mit einer Beendigung des Mietverhältnisses zum 30.04.2009 leider abfinden."

 

Your lease is not ambiguous:

In applying a 3-month notice period, your notice must have been received by your landlord up to the Monday, 05 January so that January adds to the term of notice and the tenancy is terminated on 31.03.2009. If the landlord is on vacation, then he must ensure that he can receive information sent via post.

Important:

You must be able to prove the timely service of your notice. Do you have a witness to your delivering the notice? If not then you must unfortunately resign yourself to a lease termination of April 30 2009.

 

Well, fortunately for me, I do have a witness of sorts. The old gentleman who lives upstairs was emptying the Landlord's mail box while he was away; I asked him (on 2nd Jan.) when the Landlord would return, and he told me "9th Jan". I then asked what to do with the letter (although I did not say what it was) and he said "just leave it with the rest of his mail in front of his door like I have just done." Which I did.

 

Thank you everyone for all your input. Now let's see what happens if the Landlord gets tough :)

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