The parties agreed on a lease contract for commercial premises in 2001. § Section 2 number 2 of the contract contained the clause that the tenancy begins in 2001 and ends in 2006. It would be extended by 1 year at a time if one of the parties did not object before the end of the rental period. According to § 2 item 3, the lease could be extended by a further 1 x 5 years in each case. Pursuant to Section 2 item 8, it was agreed that the lease would not be tacitly extended if the tenant continued to use the leased property after the expiry of the lease term.
After 2009, the tenant continued to use the rented premises and continued to pay a fee equivalent to the rent. In June 2017, he sent a letter to the landlord, according to which he “terminated the lease.” Subsequently, he stopped paying a fee. The tenant considered that the lease had already ended. The lease had not been tacitly extended, contrary to the provision of Section 2(2), by virtue of Section 2(8). The landlord brought an action for payment of rent up to and including December 2017 after preceding dunning proceedings.
The Neukölln Local Court upheld the landlord’s action. Although the original tenancy had already ended in 2009, a new contract had been concluded by conclusive conduct. The will of the defendant to this new tenancy had manifested itself through his “termination of the tenancy”. Thus, the defendant gave ordinary notice of termination on December 31, 2017, Section 580a(2) of the German Civil Code.
The District Court of Neukölln does not take a clear position on the question under which aspects the lease ended in 2009. It leaves open the question of whether the provision on automatic renewal was waived by the addendum or whether paragraphs 3 and 8 of § 2 contradicted each other and thus § 305c BGB applies.
(Judgment of the Neukölln District Court of 08.08.2018, Az. 9 C 61/18)