Rent arrears paid: Does that end the eviction risk?

The case: Two months of unpaid rent followed by payment

A Berlin tenant initially failed to pay rent for January and February 2024. By letter dated 8 February, the landlord terminated the tenancy with immediate effect and, alternatively, by ordinary notice. A few days later, the tenant paid, but retained two and four per cent of the respective monthly rent because scaffolding prevented use of the balcony (Federal Court of Justice, VIII ZR 21/26, paragraphs 1 to 3).

The eviction claim failed in both lower courts. Berlin Regional Court II considered that payment within the grace period had also cured the ordinary termination. The Federal Court of Justice disagreed. The appeal on points of law concerned only ordinary termination. The case was remitted because further findings were needed. The Federal Court of Justice did not itself order eviction (paragraphs 4 to 5, 8 and 22).

What a grace-period payment can actually achieve

Section 569(3), no. 2 of the German Civil Code protects tenants facing immediate termination for rent arrears. Such termination can become ineffective if the landlord is paid in full for the rent and compensation for continued use that are due, no later than two months after the eviction claim becomes pending before the court. It is also sufficient if, within that period, a public body commits to satisfying those amounts.

In a standard eviction action, the claim becomes pending for this purpose when the statement of claim is served. The two-month period therefore does not start with the termination letter (sections 253(1) and 261(1) of the German Code of Civil Procedure). That is no reason to wait: The amounts due and the date by which payment must be received should be clarified promptly.

The same provision contains an important limit: This protection does not apply if the current termination was preceded by another termination that became ineffective through this mechanism no more than two years earlier. It is not a protection that can be used repeatedly without restriction for rent arrears (section 569(3), no. 2, second sentence of the German Civil Code).

Why ordinary termination may nevertheless remain effective

Ordinary termination for breach of duty requires a culpable breach that is more than insignificant under section 573(2), no. 1 of the German Civil Code. Its requirements differ from those for immediate termination. According to the Federal Court of Justice, the grace-period rule applies neither directly nor by analogy. That remains so where both notices rely on the same rent arrears (paragraphs 11 to 13).

This does not mean that every arrears situation justifies ordinary termination. In the case decided, the other requirements were merely assumed in the landlord’s favour for the purpose of the appeal on points of law. The tenant’s fault had not been finally established, nor had the question whether insisting on termination exceptionally breached the principle of good faith. That assessment is still required after payment (paragraphs 12 and 20 to 21).

An announced legislative change does not automatically help under current law either. The government bill proposes extending the grace-period rule. The Bundestag held a hearing on it on 14 October 2026. The version of section 573 of the German Civil Code in force and retrieved on 22 October 2026 does not yet contain this extension. The Federal Court of Justice expressly distinguishes the reform proposal from the law currently in force (paragraph 14).

Payment is neither pointless nor a guaranteed solution

Our simplified example: A tenant receives immediate termination and, alternatively, ordinary notice of termination. She pays the required amounts within the grace period, and there is no earlier grace-period termination that excludes protection. The immediate termination may then be ineffective. Ordinary termination still requires a separate assessment. This example illustrates the legal distinction; it does not predict the outcome of a particular case.

Our assessment: The exact wording of the notice, the rent actually owed, the reasons for the arrears and subsequent events are decisive. The payment must not simply be ignored in the assessment. Nor does it replace examination of the remaining requirements. Where defects in the property are alleged, the defects and the calculation of any rent withheld should also be documented clearly.

The documents and steps that matter now

Arrange the documents chronologically wherever possible. If there are financial difficulties, clarify potential assistance from a public body promptly. Merely hoping for assistance does not replace the commitment required by law. Court correspondence and the deadlines set in it must be observed alongside the statutory grace period.

• Collect the tenancy agreement, termination letter and evidence of receipt.
• Keep the eviction claim, its service date and any deadlines set by the court.
• Compile a complete rent account, payment records and outstanding amounts.
• Document the reasons for arrears, property defects and previous correspondence.
• Disclose earlier termination notices and grace-period payments.
• Have immediate and ordinary termination assessed separately.