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A tenant pays their outstanding rent, but the landlord still demands that they leave the property. Is this legal? In its ruling of 30 September 2026 (Case No. VIII ZR 21/26), the German Federal Court of Justice (BGH) confirmed that paying rent arrears does not always prevent the termination of a tenancy.
The key question is which type of termination the landlord has issued.
Rent Paid, but the Landlord Still Demands Eviction
The case concerned a tenant in Berlin who had failed to pay rent for January and February 2024.
The landlord responded by terminating the tenancy without notice (fristlose Kündigung) and, alternatively, by issuing an ordinary termination with notice (ordentliche Kündigung).
Shortly after receiving the termination notice, the tenant paid most of the outstanding rent. However, the landlord maintained the termination and demanded that the tenant vacate the apartment.
The Berlin Regional Court initially ruled in favour of the tenant. The Federal Court of Justice subsequently overturned that decision and referred the case back for further examination.
Why Is Paying the Outstanding Rent Not Always Enough?
German tenancy law distinguishes between two types of termination.
Termination without notice (fristlose Kündigung)
If a landlord terminates a tenancy due to unpaid rent, the tenant may, under certain conditions, prevent the termination from taking effect by paying the outstanding amount within a statutory grace period.
Under Section 569(3)(2) of the German Civil Code (BGB), this period generally extends to two months after the eviction claim becomes legally pending before the court.
However, certain restrictions apply, particularly where the tenant has repeatedly failed to meet their payment obligations.
Ordinary termination with notice (ordentliche Kündigung)
The situation is different when the landlord issues an ordinary termination.
Under Section 573(2)(1) BGB, a landlord may terminate a tenancy if the tenant has seriously and culpably breached their contractual obligations.
In such cases, paying the outstanding rent after receiving the termination notice does not automatically invalidate the termination.
The Federal Court of Justice reaffirmed this distinction in its latest ruling.
What Does This Mean for Tenants in Germany?
Many tenants believe that paying their outstanding rent will automatically resolve a dispute with their landlord.
Unfortunately, this is not always the case.
The situation becomes particularly serious when a landlord issues both an immediate termination and an alternative ordinary termination.
Even if the immediate termination becomes ineffective following payment, the ordinary termination may remain valid.
However, not every late rent payment gives a landlord the right to terminate a tenancy.
Whether an ordinary termination is legally justified depends on the circumstances, including the amount owed, the duration of the delay and whether the tenant was responsible for the breach.
Are Changes to German Tenancy Law Planned?
The German government has proposed changes intended to strengthen tenant protection in cases involving rent arrears.
Under the proposed reform, payment within the statutory grace period (Schonfristzahlung) could, in certain circumstances, also affect the validity of an ordinary termination.
However, the Federal Court of Justice made it clear that proposed legislation does not change the law currently in force.
Until any new provisions take effect, the existing legal framework continues to apply.
Received a Termination Notice for Unpaid Rent? What Should You Do?
Tenants who receive a termination notice because of rent arrears should act promptly.
Paying the outstanding amount may be an important step, but it does not necessarily guarantee that the tenancy will continue.
It is essential to examine whether the termination meets the legal requirements, whether the outstanding rent provides sufficient grounds for termination and whether the landlord’s claim can be challenged.
Landlords should also ensure that all statutory requirements are satisfied before terminating a tenancy.
Seeking legal advice at an early stage can help protect your rights and avoid unnecessary legal disputes and additional costs.
