Reader question: Does the auxiliary ordinary termination automatically fall away after full grace-period payment?
The termination letter states “without notice, alternatively ordinary”. After the eviction claim the rent arrears are paid in full. The relief is understandable. Nevertheless it must now be clarified which of the two terminations is legally resolved and which examination remains open.
The BGH decided again in judgment VIII ZR 106/23 of 23 October 2024: the grace-period payment under §569 paragraph 3 number 2 BGB does not automatically render an ordinary termination declared at the same time ineffective. [BGH10623] The converse does not follow from this, namely that the ordinary termination would be effective in every case.
Determine the cure route exactly first
For the summary termination for rent arrears under §543 paragraph 2 sentence 1 number 3 the §569 sets out a special cure route. At the latest within two months after the lis pendens of the eviction claim the letting must have been satisfied with regard to the due rent and the due compensation under §546a paragraph 1; the obligation of a public body to satisfy is also covered. A termination already cured accordingly in the preceding maximum of two years excludes this effect. [BGB543][BGB569]
An offset old monthly arrears therefore is not alone the complete examination. Have the relevant due amounts, the actual settlement or the public obligation and any earlier grace-period case established.
Do not calculate from the date on the claim letter
The period is linked to the lis pendens of the eviction claim. §261 paragraph 1 ZPO connects lis pendens with bringing an action; §253 paragraph 1 describes this by service of the writ. [ZPO261][ZPO253] The printed date on a lawyer’s letter or the receipt of a draft is therefore not a reliable proxy.
Secure the actual service date together with the envelope or service documents and have the relevant sequence calculated. Payments, booking confirmations and official declarations belong with dates. This article does not calculate an individual procedural period from incomplete information.
The second termination remains a separate legal question
The ordinary termination can be based on a culpable, not insignificant breach of contractual duties. [BGB573] In the BGH case the prerequisites were not finally determined. The matter was referred back. To be examined in particular were the overall assessment of the payment default and a possible, exceptionally disloyal (breach of good faith) invocation of the ordinary termination. [BGH10623]
For advice therefore the duration and amount of the arrears, its causes, the documented sequence and the settlement are required. “Everything paid” does not replace this assessment; “alternatively ordinary” in turn does not replace an effective termination justification.
Hypothetical case with two result columns
A tenant party has paid arrears in full after service of the claim. After examining the prerequisites the advice confirms the cure of the summary termination. In the overview it states there: “resolved by examined grace-period effect”.
Alongside this the ordinary termination remains with its own termination date and its prerequisites. Facts regarding the breach of duty and the overall assessment are still to be prepared for it. The tenant therefore submits payment receipts to the court and at the same time addresses the outstanding objections within the procedural deadlines set. They do not declare the entire legal dispute resolved on account of the transfer.
Clarify the procedural status explicitly
Even after payment court letters, dates and the specific eviction claim must continue to be dealt with. Have clarified which ground for termination the opposing party still bases its claim on and what procedural response is required. The practical benefit of the separation is a full advisory mandate: demonstrate cure effect and examine the remaining termination independently.