Whether it is a move, a change of job or the landlord's own use: anyone who wants to end a residential tenancy has to observe fixed notice periods (Kündigungsfristen). These periods are laid down in the German Civil Code (Bürgerliches Gesetzbuch, BGB) and cannot be changed to the tenant's disadvantage in an ordinary tenancy agreement. Anyone who overlooks them can quickly end up paying one or more months' rent longer than planned.
The central provision is § 573c BGB. It governs how long the period is and from when it runs. It is important to understand from the outset that a different period applies to the tenant than to the landlord, and that the landlord, as a rule, additionally needs a legally recognised ground for termination. This article explains both sides and shows the most common pitfalls.
The statutory basis: § 573c BGB
For residential tenancies of indefinite duration, the ordinary notice period (ordentliche Kündigungsfrist) under § 573c BGB applies. Under subsection 1 sentence 1, the basic period is three months. Initially it is the same for both sides, but for the landlord it becomes longer as the duration of the tenancy increases. What matters for the calculation is not the date on which the notice of termination (Kündigung) is sent, but the day on which it reaches the recipient.
These periods are mandatory in the tenant's favour. Under § 573c subsection 4 BGB, any agreement that deviates from the statutory periods to the tenant's disadvantage is invalid. A clause that imposes, for example, a six-month notice period on the tenant therefore has no effect. Conversely, a contract may well grant the tenant shorter or equal periods.
Notice periods in a residential tenancy agreement cannot be changed to the tenant's disadvantage: the tenant's own period may not become longer, and the landlord's may not become shorter.
The tenant's notice period: almost always three months
For the tenant, the basic period of three months remains in place, regardless of how long he or she has lived in the flat. Someone who has lived there for twelve years has the same period as someone who moved in only a year ago. The tenant also does not have to give any reason for ordinary termination (ordentliche Kündigung).
An example: if the tenancy is to end on 31 October, the written notice of termination must reach the landlord no later than the third working day of August. If it is received only on 5 August, the end of the contract is postponed to 30 November. In practice, many terminations fail precisely because of these grace days (Karenztage).
The landlord's notice period: staggered according to the length of the tenancy
For the landlord, the period increases with the duration of the tenancy. Under § 573c subsection 1 sentence 2 BGB, a staggered scale applies; what counts is the actual handover of the flat, not the date on which the contract was concluded:
- Tenancy of up to 5 years: three months' notice
- More than 5 years: six months
- More than 8 years: nine months
An example: if the tenant has lived in the flat for nine years, the landlord must observe a nine-month period. If he wants to terminate as of 31 December, the notice of termination (Kündigung) must be received no later than the third working day of April.
It is also decisive that the landlord cannot simply terminate without a reason. Under § 573 BGB, he needs a legitimate interest (berechtigtes Interesse) in ending the tenancy. Exceptions exist only in special cases, for instance for a flat in a two-family house occupied by the landlord himself under § 573a BGB; in that case, however, the notice period is extended by three months. Classic cases are the landlord's own use (Eigenbedarf, § 573 subsection 2 no. 2 BGB) or a significant breach of contract by the tenant. A notice of termination in which the ground is missing or does not hold up is invalid, even if the notice period was observed.
The grace days: up to the third working day
Under § 573c subsection 1 sentence 1 BGB, the notice of termination (Kündigung) must be received by the third working day of a calendar month for that month still to count. Working days are Monday to Saturday; Sundays and public holidays are not counted. According to the case law of the Federal Court of Justice (Bundesgerichtshof, judgment of 27.04.2005, VIII ZR 206/04), Saturday counts as a working day for termination purposes, with one important exception: if the third working day falls on a Saturday, the end of the period is postponed to the following working day under § 193 BGB.
Receipt (Zugang) is governed by § 130 BGB. The notice only takes effect when it has entered the recipient's sphere of control in such a way that, under normal circumstances, it can be expected to be read. A letter dropped into the letterbox late in the evening is generally deemed received only on the following day. As to form, § 568 BGB mandatorily requires written form (Schriftform): the notice must bear a handwritten signature; a qualified electronic signature would be permissible, but plays practically no role in everyday life. A notice of termination by e-mail or messenger is invalid.
When the contract departs from the rule
Not every tenancy agreement is a classic contract of indefinite duration. In the case of a genuine fixed-term tenancy (Zeitmietvertrag) under § 575 BGB, ordinary termination during the term is excluded in principle; the contract ends automatically on the agreed date, but it requires a legally recognised reason for the fixed term. If that reason is missing, the contract is deemed to be of indefinite duration.
Clauses waiving the right to terminate (Kündigungsverzicht) or setting a minimum term, under which both sides waive ordinary termination for a certain period, are also common. If such a mutual waiver is contained in a standard-form tenancy agreement, it is valid, according to the case law of the Federal Court of Justice, for no more than four years from the conclusion of the contract. After that, the normal right of termination revives.
Termination without notice as the exception
Ordinary notice periods must be distinguished from extraordinary termination without notice for good cause (außerordentliche fristlose Kündigung aus wichtigem Grund) under § 543 BGB. It ends the tenancy immediately, but requires a serious reason. For the landlord, the most important case is default in payment: under § 543 subsection 2 no. 3 in conjunction with § 569 subsection 3 BGB, he may terminate without notice if the tenant is in arrears on two consecutive dates with more than one month's rent, or over a longer period with a total of two months' rent. If the tenant pays the entire arrears no later than two months after service of the action for eviction (Räumungsklage), the termination without notice becomes invalid, provided he has not already used this grace period (Schonfrist) within the last two years. Caution: under the current legal position, an ordinary termination declared at the same time remains in effect despite payment. A draft bill of the Federal Government intended to change this is before the Bundestag.
The tenant may also terminate without notice, for example if the flat has significant defects and the landlord fails to remedy them despite being set a deadline, or in the event of a health hazard under § 569 subsection 1 BGB.
If you are unsure whether your notice of termination is effective, or whether a notice you have received is valid, the Kanzlei Ertogan will review your documents and the deadlines and show you the most sensible next step, in German, Turkish or English.