Around 20 million homes use natural gas as an energy source. But in view of the exploding gas prices, many tenants now have a problem with dramatically increasing additional costs. ARAG legal expert Tobias Klingelhöfer explains what options landlords have and how court proceedings can be avoided.
If tenants owe their energy supplier the monthly installments, the supplier may not contact the landlord to demand the outstanding installment from him. In a case before the Federal Court of Justice, a utility company got nothing when a defaulting tenant did not pay his electricity costs (Az.: VIII ZR 165/18).
The district court of Amberg made a similar decision in the case of a gas supplier who had tried in vain to claim the outstanding payments from the owner (Az.: 22 O 828/20). The prerequisite in this case, however, was that the tenant had actual power of disposal over the supply connection at the transfer point.
Tobias Klingelhöfer is a lawyer and has been working as a legal expert for ARAG for many years. As a guest columnist for FOCUS Online, he informs consumers about their rights and obligations in different life situations.
According to most rental contracts and also according to legal regulations, the rent must be transferred by the third working day of the month. Otherwise the renter is in default of payment. Then we speak of a rent arrears. The basic rent and the operating cost prepayments are relevant for the backlog.
It is also important that according to a ruling by the Federal Court of Justice (Az.: VIII ZR 222/15), the rent must be transferred by the key date. It does not have to be in the landlord’s account yet. Any other clause in the rental agreement is invalid. Means: Only the transfer has to be made on time. Landlords should therefore always wait a few days before approaching the tenant and addressing the rent arrears.
Non-payment of rent can have many reasons – perhaps even through no fault of the tenant. For example, if the rent is paid by the office. It therefore makes sense for the landlord to seek dialogue as a first step in the event of non-payment or late payment of the rent. Perhaps an unbureaucratic compromise can be found. For example, talking about financial help from third parties or a repayment plan with installment payments can help to pay off rent arrears.
When rent arrears arise, landlords should neither rush nor act too slowly. I recommend the following sequence: If the rent has not been paid a week after the deadline, landlords should send a payment reminder. If the money is still not there another week later, it is time for the first reminder. A second reminder can be sent ten to fourteen days later. Overdue fines can then also be charged. If the tenant does not respond in a timely manner, the landlord can give notice of termination.
Legally, a reminder is not necessary. Since the rent is a regular payment with fixed deadlines, the tenant is automatically in arrears in the event of non-payment. Nevertheless, it is recommended in order to start a conversation and to document the rent arrears.
According to paragraph 543 paragraph 2 number 3 of the German Civil Code (BGB), the landlord can issue an “extraordinary termination without notice for good cause” in the event of rent arrears. The rent arrears are such a reason if the rent is not transferred on the agreed date in two consecutive months or the tenant owes the landlord a not inconsiderable part of the rent in two consecutive months. Even if the tenant owes the landlord an amount that corresponds to two months’ rent over a longer period of time, extraordinary termination without notice is possible.
If the tenant pays the rent arrears within the notice period, termination without notice becomes ineffective. However, timely termination does not lose its effect. Nevertheless, the notice period must of course be taken into account.
If the tenant does not pay his rent debts even after the termination, the landlord has the option of a legal dunning procedure. This should be preceded by a normal reminder from the landlord with a deadline. At best, landlords also announce the further legal steps in the event of refusal to pay. My tip: For the documentation, the delivery should definitely be made by registered mail with acknowledgment of receipt or by personal delivery in the presence of a witness.
A judicial dunning procedure is initiated at the relevant central dunning court. Responsibility depends on the federal state. The dunning court sends the dunning notice to the debtor. The tenant then has 14 days to lodge an objection. If he does, it’s time for the landlord to get a lawyer. Then comes the court case. The goal is an enforcement order. If the tenant allows the 14-day objection period to expire, an enforcement order can be applied for. Landlords then receive the enforcement order from the dunning court or apply for delivery directly to the defaulting tenant.
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But where there is nothing, there is nothing to be had. If the landlord has an enforcement order in his hand, he may be right, but it is far from his money. There are also costs for the dunning court and possibly even for the lawyer.
Of course, landlords can also hand over their claims to a reputable debt collection agency. Since the rental agreement or the law stipulates a payment period, a reminder is not a prerequisite for the tenant’s default in this case. However, I advise caution here as well: It is regulated that tenants have to pay collection costs for rent arrears – but not to what extent.
Another option is the rental deposit. In principle, rent debts may not be offset against the rental deposit during the current tenancy. Case law only allows for very narrow exceptions, in which this can still happen, for example if the claims are either undisputed or have been legally established by a judgment. According to the lessor’s lien, landlords are also entitled to seize objects from the tenant’s private possession.
Rental debts are subject to the regular limitation period of three years (Section 195 BGB). A landlord has three calendar years to collect the debt. The limitation period begins at the end of the year in which the rent arrears arose (paragraph 199 I BGB).