A tenant has reported you to the police alleging an incident. Later the investigation is discontinued. You feel the report was a severe breach of trust and therefore want to terminate the tenancy. Before taking this step you must examine what the person actually stated and why they then considered their suspicion to be justified. The notice of discontinuation alone does not answer these questions.
Separate the suspicion at the time from the later outcome
The BGH dealt in VIII ZR 234/22 with an actual misuse of data against a female tenant. She named the managing partner of her landlord as a suspect due to previous conflicts. The perpetrator was not identified. The order issuing the notice nonetheless accepted the assessment that, under these circumstances, there was no breach of duty of sufficient gravity to justify termination. The appeal proceedings then ended by withdrawal. [BGH]
Do not generalise this result as a blanket licence for arbitrary accusations. The reasoning requires an assessment of the concrete case and likewise takes into account groundlessly false reports as well as knowingly untrue or recklessly false statements. Legitimate personal interests and civic rights also belong in this balancing. [BGH]
Begin the termination review with the complete statements
Our editorial recommendation: Provide to legal counsel the statements actually available together with their context. Was an observation claimed as one’s own, was a suspicion explicitly labelled as such, or was a third party’s statement repeated? Which facts were known to the tenant at that time? Which of them are undisputed, disproved, or still unresolved?
Also present the prior communications in full. A strong phrase taken out of context cannot explain the occasion. Do not add assumed motives as established facts. Feeling personally aggrieved is understandable as an experience; for the legal review it needs to be linked to a describable event.
Examine two termination routes with their prerequisites
§ 543 BGB requires, for extraordinary termination without notice, an important reason with an individual case and interests balancing. § 573 paragraph 2 number 1 names, for ordinary termination, a culpable, not insignificant violation of contractual duties. [KUNDIGUNG]
Therefore have both routes examined on the basis of the actual report. An ordinary termination as an alternative does not automatically remedy a missing substantial breach of duty. The question whether a warning is necessary must also be appropriately examined; the BGH did not have to decide this in the case mentioned because the corresponding breach of duty was already absent. [BGH]
A hypothetical case with an impermissible short circuit
After a report a landlord receives notice that the investigations did not identify a perpetrator. She initially notes “report demonstrably fabricated”. When compiling the documents she realises that the reported incident did actually occur and that the tenant had only expressed a suspicion. She corrects her own summary and submits the complete position for review. The example does not decide on culpability nor on the admissibility of a specific termination.
The aim is a reasoned decision under tenancy law. A truthful statement is not relabelled because of its unwelcome content. Conversely, actually substantiated false statements remain assessable with their respective weight. A report, its criminal-law handling and possible contractual consequences are judged on this factual basis.