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KI-Symbolbild: Weitgehend geräumter Wohnungsflur mit leerem Garderobenständer, kleiner Bank in einer Nische und offener Tür.
Decision aid Letting Germany

The tenant’s notice is disputed: Do not apply full compensation for use without an intention to repossess

If one insists on the continuing tenancy, one cannot automatically apply full compensation for use to the period later confirmed as terminated. Check intention, period and actual use.

Automatically translated – the German version is legally binding. Show original (German)

Published
19 Oct 2026
Research as of
17 Oct 2026
Applies to
Germany
For whom
Owners & landlords
Article ID
WX26-P03-0101

The tenant gives notice. You consider the notice ineffective and continue to demand the agreed rent. Later the end of the tenancy is confirmed for the date given by the tenant. For the intervening period it is clear: the premises were no longer lived in, but some furniture remained. Before you simply relabel the previous rental claim as compensation for use, the legal basis for the claim and the factual course must align.

Separate the clarified end of the tenancy from your position at the time

Collect the notice, complete responses, offers to return, court documents and the result on validity. For the relevant periods determine which position you actually took. a summary written today must not replace the earlier content of your letters.

This article does not decide the validity of a notice. It deals with the subsequent payment dispute in a tenancy that was actually terminated. An ongoing contract and a validly terminated contract with retained possession are different starting points.

Do not infer an intention to repossess solely from a lack of return

Section 546a BGB ties compensation to the withholding after the end of the tenancy. [B546A] In VIII ZR 291/23 the BGH confirmed: in addition to a lack of return, that must contradict the landlord’s intention to repossess. Someone who, despite the tenant’s notice, assumes the continuation of the contract and does not demand return may fail on that basis. [BGH291]

For your preparation it is therefore essential to clarify what the complete communication in the respective period shows. A subsequently asserted different intention is no substitute for the actual course of events. Have it legally examined what significance earlier declarations and possible later changes have.

Examine the actual use separately

A claim based on unjust enrichment is a separate question under Sections 812, 818 BGB. [B812, B818] According to the cited BGH decision, it depends on benefits actually drawn. If only furniture remained, the benefit of storing those items is not automatically to be equated with the full residential rental value. [BGH291]

Record therefore what actually happened in the disputed period and what the information is based on. Separate documented personal observations, received communications and conjectures. A key still being present does not yet fully explain for what purpose rooms were actually used.

A case with a claim wrongly carried forward

In the fictitious case the rent account still contains several full monthly amounts unchanged. The landlady meanwhile had insisted on the continuation of the contract. After clarification of the end of the tenancy she initially demands the same sum under a new name. In the consultation she however also provides the letters and the known furniture inventory.

The examination therefore has two concrete questions: whether the required withholding existed in the respective period and what benefit actually drawn can possibly be justified differently? The landlady does not adopt a third-party court award as a storage tariff nor does she independently estimate a flat percentage of the residential rent.

Order the result by period and legal basis

Have each remaining claim explained with period, basis and an understandable assessment. Payments already made are allocated to the same status. The article does not permit any deduction from the deposit or any unilateral handling of items left behind. Its aim is a coherent assessment of claims before a lost contractual dispute automatically becomes an equally large substitute claim.

Sources and context

Created with the help of AI and editorially reviewed. General guidance only; not individual legal, tax or financial advice. Errors and later changes are possible.