After the death of your previous tenant, the succession of another person into the German residential tenancy agreement has been clarified. You doubt whether their income will suffice for the rent in future. The desire to exclude any risk of loss does not answer the special question of termination. For that, a payment prognosis and unreasonableness (Unzumutbarkeit) must be based on the specific case.
To name the statutory route correctly
Section 563 paragraph 4 BGB allows, under its conditions, an extraordinary termination with a statutory period. The monthly period is linked to knowledge of the definitive succession. A significant reason in the person of the successor is required. [GESETZ] This is neither a free new selection procedure nor an automatically immediately effective termination without notice.
Have the state of knowledge, declarations and possible deadlines checked early. This article assumes a clarified succession; it does not replace a check as to who has actually become a party to the tenancy or has timely withdrawn from the succession.
Distinguish established inability from mere concern
The BGH explains in VIII ZR 105/17 that an objectively established financial inability to perform can constitute a significant reason. As a rule, it must additionally be unreasonable to await the occurrence of the general termination prerequisites due to payment default. [BGH]
Where only a threatened inability to perform exists, the requirements are particularly high. Concrete indications must permit the reliable conclusion that due rent payments will shortly fail to be made. Mere expectation or an evidently uncertain career path does not automatically suffice. [BGH]
Therefore disclose the facts available: which payment has actually been missed, which point in time is decisive and which information about available funds is confirmed? Our editorial recommendation is to expressly mark suspicions as such. A vocational training relationship is not treated solely by virtue of its designation as conclusive proof of future inability to pay.
Include all seriously to-be-considered means
The BGH requires consideration of the actual sources of financing. Existing assets, other income or state assistance can speak against the alleged impending inability to perform. A lifelong financial guarantee for the entire unlimited rental period must not be demanded. [BGH]
That does not mean a blanket assumption that some body will pay later. The concrete basis of available or expected funds is examined in a comprehensible way. Actual existing payments are also not removed from consideration merely because they do not fit the original concern.
If several persons have succeeded, the financial situation of an individual person must not be assessed detached from the joint tenancy obligation. The BGH also criticised an assessment reduced to that. [BGH]
Have your own unreasonableness justified separately
An unfavourable prognosis and an unreasonable continuation are different points of assessment. Which concrete circumstances make it impossible or unbearable for you to await the general statutory termination grounds? This additional assessment must not be replaced solely by the assertion that money might be lacking in future. [BGH]
In the hypothetical case a landlady only sees the fixed-term employment of the successor resident. The advice supplements confirmed further means and the actual payment history. Only then is it assessed whether there is at all a sustainable prognosis and, beyond that, the special ground for termination. The case contains no fixed income quota.
Do not derive the outcome from a single rule of law
The BGH set aside the appellate judgment and remitted the case. Other alleged grounds for termination and further questions of fact remained to be dealt with. [BGH] The decision therefore confirms neither every termination in the face of financial uncertainty nor the permanent existence of every such tenancy.
Your result is a concrete professional decision on facts, prognosis, unreasonableness and timely action. Until then, an anxious note on the account will not be reused as an already clarified ground for termination.