Loud parties, late rent payments, or an unauthorized subtenant: No matter how careful you are as a landlord when choosing a tenant, it is not uncommon for the supposed model tenant to attract attention after a while due to disruptive behavior and breaches of duty. If it has come to this, you can issue a warning letter. In simple terms, this is the yellow card in tenancy law: If the behavior in breach of contract continues despite a warning, you can terminate the tenant's lease without notice.
What is a warning?
If your tenant is attracting negative attention due to disruptive behavior, you should issue a warning to them. This serves to draw the tenant's attention to his misconduct and at the same time to ask him to refrain from it in the future. In most cases, you can only terminate the tenant without notice if you have previously given him a warning notice.
Common reasons for a warning to the tenant:
- Disregard of the house rules
- Disturbance of the peace / noise pollution
- Failure to clean the stairwell
- Unauthorized keeping of pets
- Late or irregular payment of rent
- Unauthorized structural changes
- Neglect of the apartment
- Unauthorized subletting
- Transfer of the rental object to third parties
- Unauthorized commercial use of the rental property
Good to know: Until now, landlords could only issue a warning if the tenant himself misbehaved. In August 2020, however, the Federal Court of Justice (BGH) ruled that tenants must also answer for the misconduct of visitors (Az. VIII ZR 59/20). In this case, the tenant's partner repeatedly insulted fellow tenants. The court then ruled that both the warning and the termination without notice of the tenant, who herself was not guilty of anything, were justified.
When is a warning necessary?
As a landlord, you protect yourself with a warning notice. If you terminate your tenant's lease and he or she refuses to accept the termination of the lease, your chances are slim without prior warning. The court will then argue that the tenant was not made aware of his breach of contract and that you tacitly tolerated it.
In case of doubt, it is always better to issue a warning. If the tenant continues to be conspicuous for his negative behavior, but you do not want to terminate the lease directly, you should issue another warning. Contrary to what is often assumed, however, there is no fixed number of warnings that must be issued before a termination is given. Even a single warning can justify a dismissal. As a rule of thumb, however, you can remember: The more often you have warned the tenant, the better your chances of being successful in terminating the lease.
However, there are 3 cases in which tenancy law explicitly does not require a prior warning for a successful termination:
- It is foreseeable that the warning will be unsuccessful: This is the case, for example, if you have already spoken to the tenant and the tenant has openly announced that he intends to continue with the behavior that is in breach of contract.
- Immediate termination is justified after weighing the interests of both parties to the contract: This usually applies if the tenant has vehemently insulted the landlord or co-tenant several times or has even become physical.
- The tenant has accumulated considerable rent arrears: The rent arrears are substantial if the tenant is in arrears by a total of 2 months' rent over a longer period of time or if he has paid only part of the rent for 2 months as a result and the arrears amount to more than one month's rent.
Tip for tenants: Incidentally, not only landlords can issue a warning notice. Tenants can also issue warnings to their landlords for breaches of duty. For example, if tenants discover a defect and the landlord does not remedy it within the time limit, a warning can be the consequence. As a consequence for the persistent behavior contrary to the contract, tenants can also threaten with termination without notice or alternatively announce a rent reduction.
Form and content: What must be written in the warning??
The warning is not subject to any formal requirements. This means that even a verbal warning is legally effective. Nevertheless, it is recommended that you always issue a warning to the tenant in writing: As a landlord, you bear the burden of proof. If the case ends up in court, you will have to prove that you have previously warned the tenant and pointed out the consequences of further misconduct.
If you decide to give a written warning, you should not hide your intention between the lines. Make it explicitly clear that this is an official warning. It is best to put the word "warning" in the subject line. In addition, you must describe the behavior in breach of contract as explicitly as possible. As a rule, blanket warnings are not recognized in court. You should therefore state exactly what the breach of duty is. Ideally, you can also name the date or period of the misconduct, as well as witnesses. Lastly, you should ask your tenant to cease and desist from the misconduct either with immediate effect or by giving a reasonable notice period. Also address what the consequences would be if the tenant persists in the misconduct despite warnings. Mostly this is the termination without notice. However, if the breach of duty is, for example, the failure to clean the stairwell, the consequence may also be that you hire a professional cleaning service at the expense of the tenant.
Once the warning letter is ready, it must be signed by all landlords. Alternatively, you can ask your co-landlords to issue you a power of attorney. This must also be signed by all landlords and the original must be attached to the warning notice. If the lease was signed by more than one tenant, a warning letter is only effective if it is addressed to all parties to the lease and not just to the conspicuous tenant.