Reader question: Is a private guarantee to avert an imminent termination for non-payment automatically limited to three months' rent?
A close person has rent arrears in Germany. To avert an imminent termination for payment arrears, you are to assume a guarantee. You want to help and assume that your liability is in any case limited to three months' rent. Precisely in this situation that assumption is dangerous.
Record the occasion with the actual situation
Put together the arrears overview, the threat of termination and the proposed wording. Has a termination only been threatened or already declared? Which specific promise by the landlord does the guarantee correspond to? A merely hoped-for retention of the flat is not a proven agreement about what the other party will actually do.
The article concerns the new private third-party guarantee in an ongoing tenancy to avert an imminent termination for payment arrears. A demanded standard security on new letting will be assessed separately.
Do not transfer the ordinary deposit limit without checking
§ 551 BGB generally limits the residential security to be provided by the tenant and protects against disadvantageous deviations. [BGB551] However, the BGH decided in judgment VIII ZR 379/12 of 10 April 2013 that paragraphs 1 and 4 do not apply to the additional security provided by a third party in order to avert an imminent termination for payment arrears, as dealt with there. [BGH37912]
For this special case it did not matter whether the security was offered voluntarily or requested by the landlord. [BGH37912] Therefore do not rely on a broadly worded text later being automatically reduced to three months' rent.
Actually read the scope and end of the obligation
§ 765 BGB describes a separate obligation to the creditor for another's liabilities; future or conditional liabilities can also be covered. [BGB765] Check which claims, periods and limits the specific declaration includes.
In the BGH case at the time, the document was interpreted without the temporal and monetary limitation later claimed by the guarantor. [BGH37912] The fact that a previous security was to be replaced did not automatically confirm an equally high liability cap. A personal intention therefore need not correspond to the content actually declared.
Obtain independent advice before a private signature
Present the complete draft together with your financial situation for independent examination. Ask for concrete explanation of the maximum or open scope and the conditions of a later end. An emotional promise in a family conversation does not replace this decision.
For the private guarantee dealt with here, § 766 BGB requires the written declaration and excludes the electronic form; the provision also contains a curative rule in case of performance. [BGB766] No plan should therefore arise to commit or pay informally at first and only afterwards think about the significance.
Fictional decision with open consequential risk
In the invented case the current emergency concerns two outstanding monthly amounts. However, the proposed guarantee text also covers other ongoing obligations. The helping person therefore has this exact difference explained before making their decision and at the same time clarifies which termination defence is actually promised.
The decision can only be based on the examined scope. The article guarantees neither the retention of the flat nor the effectiveness of every conceivable declaration. It is intended to prevent a desire for limited immediate help from unnoticedly becoming a substantially more far-reaching commitment to liability.