Vermieter darf insolventem Mieter nach „Freigabe“ der Mietverhältnisse durch den Insolvenzverwalter wegen Mietrückständen fristlos kündigen

Bundesgerichtshof, Urteil vom 17.06.2015
– VIII ZR 19/14 –

Leitsatz des Bundesgerichtshofs:

1. Vermieter darf insolventem Mieter nach „Freigabe“ der Mietverhältnisse durch den Insolvenzverwalter wegen Mietrückständen fristlos kündigen

2. Kündigungssperre gemäß § 112 Nr. 1 InsO dient Schutz der Insolvenzmasse und nicht persönlichem Schutz des Mieters vor dem Verlust der Wohnung

Im Einzelnen:

Der Bundesgerichtshof hat entschieden, dass ein Vermieter einem Mieter nach der „Freigabe“ des Mietverhältnisses seitens des Insolvenzverwalters/Treuhänders eine außerordentliche Kündigung wegen Zahlungsverzugs aussprechen kann.

Der Vermieter kann sich der Entscheidung des Bundesgerichtshofs auch auf Mietrückstände stützen, welche vor der Insolvenz¬antrag¬stellung entstanden sind!

Der Bundesgerichtshof hat somit entschieden, dass die Kündigungssperre des § 112 Nr. 1 InsO mit Wirksamwerden der Enthaftungserklärung (auch Freigabeerklärung genannt) nach § 109 Abs. 1 Satz 2 InsO entfällt und eine außerordentliche Kündigung auch auf Mietrückstände gestützt werden kann, die vor der Eröffnung des Insolvenzverfahrens aufgelaufen sind.

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