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If a tenant does not pay the rent, one speaks of a rent arrears. Above a certain level of arrears, the tenant is threatened with termination of the rental agreement without notice and, if necessary, an eviction action.
One speaks specifically of a rent arrears if the tenant has not paid the rent by the third working day of the current month. However, the BGH has decided that it is sufficient to trigger the transfer on the third working day at the bank. Accordingly, it does not matter when the landlord receives the money (BGH VIII ZR 222/15).
If the tenant is two months in arrears, the lease can be terminated without notice. It can also be terminated if the rent has only been partially paid over a long period of time. As soon as the sum of the missed amounts is two months' rent, you can cancel. For termination due to rent arrears, the total arrears are therefore significant (BGH, judgment of December 8, 2021, VIII ZR 32/20). The tenant does not try to pay if he justifiably reduces his rent due to housing defects. However, if the rent was reduced without justification or too high, this can again be considered a arrears. Another reason for termination is regularly unpunctual payments. Here, however, the landlord must warn the tenant before the termination (BGH Az. VII ZR 364/04).
In the following cases, the termination without notice becomes ineffective:
- the tenant pays the entire rent arrears immediately after receipt of the notice of termination (§ 543 Para. 2 No. 3, Sentence 2 BGB)
- the tenant pays the amount within two months after the action for eviction becomes pending (§ 569 Para. 3 No. 2 BGB)
- a public body assumes the debt (a declaration to this effect must be submitted within two months of the service of the eviction notice)
However, the tenant is only permitted to make a termination without notice ineffective by paying the full arrears every two years. Anyone who regularly falls into arrears must expect effective termination without notice.
What to do about rent arrears
Communicate with the landlord
Rent debts do not have to end directly in a termination without notice. Since an eviction action with subsequent forced eviction is associated with considerable financial expenditure for the landlord, he often wants to avoid such a situation. Finding an agreement is therefore not impossible (e.g. by paying in installments).
Tenants‘ associations
Tenants' associations are organizations that offer help to tenants. They can point out various options for paying off debts and advise the tenant.
Borrowing money
If there is no way out, it makes sense to ask relatives and friends for a loan.
job centre
If the tenant receives unemployment benefit II (ALGII), the rent arrears and future rents may be paid by the job center (§ 34 Para. 1 SGB XII). For this, an application for rent debt assumption must be submitted.
welfare office
If rent debts arise due to low wages, an application for rent debt transfer can also be made to the social welfare office. If necessary, the office will take over the rent arrears as a means of subsistence allowance. However, only tenants for whom the support is justified and necessary can qualify. If an application is rejected, this can also be checked by an expert.
housing benefit
The responsible city and municipal administration can be used to find out whether the tenant is entitled to housing benefit.