Terminate the lease: not by fax or e-mail – that could get expensive
Created: 11/22/2022, 2:30 p.m
By: Anna Heyers
If a tenancy is to be terminated, a letter of termination is required.
How this is to be received by the recipient is regulated by law.
The landlord has increased the rent and now you want to quit.
Most people know that a rental agreement cannot be terminated verbally.
But what if you want to end the contract by email, fax or even SMS?
A few of these variations may also be acceptable, but are the exception rather than the rule.
Cancel rental agreement: not by fax or e-mail
In most cases it is necessary to submit a notice of termination by post, preferably by registered mail.
This usually doesn't cause any problems.
If a tenancy is terminated by e-mail or fax, for example because the landlord has turned off the heating or gas, there is a very high chance that the letter will not be legally binding.
The tenant must then give notice again, by post.
According to the Federal Code (BGB), the written form (§568) is important for terminations of all kinds, especially rental contracts.
This means that it is not enough to verbally pass on your request to the landlord.
On the other hand, the document must be personally signed by the author (§126 BGB).
Incidentally, this also applies if the landlord terminates the contract without notice.
Legal Terminations
As a rule, a legally binding termination must be signed by the author himself, handwritten.
This is not possible with an SMS or e-mail.
A signature here is always electronic.
Therefore, these broadcast formats are excluded from termination.
Terminations by fax, SMS or e-mail may fulfill the first point, but not the second.
Because: Even if the author's signature may be present on a fax, for example, it is not the original signature.
The signature on the sent fax is only a copy, but the landlord needs the original
Rental agreement: A letter of termination by post is still the safest option - especially as a registered letter.
© blickwinkel/Imago
Termination in electronic form: the exceptions
In addition to the things that should be in a notice of termination, the form of the notice is important.
In most cases, this is in the contract documents.
If nothing is stipulated there, it can also be terminated electronically – under certain conditions (§126 BGB, Para. 3).
In order to be able to replace a written form with an electronic form, a qualified electronic signature must be available and used.
It is essential to check beforehand whether this type of termination is permitted.
Also whether the electronic signature is the right one.
Requirement electronic signature
A qualified electronic signature must meet strict requirements according to EU Regulation No. 910/2014 (so-called eIDAS-VO).
A distinction is made between three types of signatures and only one replaces the written form according to §126 BGB: Art. 3 No. 12 eIDAS-VO.
This type of termination also requires that the letter is an electronic document.
According to Section 126a, Paragraph 1 of the German Civil Code, this is only the case if it "contains electronic data that is embodied in a writing medium that cannot be read without technical aids." Whether a fax meets these conditions is controversial - even in court .
The signature cannot be used for an SMS, so these forms are not recommended.
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When an email is considered a resignation letter
Since fax and SMS are no longer available as forms of termination, email remains.
However, this electronic form can only replace the written form under three conditions:
The recipient agrees to this form of termination.
If in doubt, the following applies here: ask!
The author of the notice must add their name.
The e-mail is provided with an electronic signature that is qualified and compliant with the Signature Act.
A fax could be used if one announces in it that one wants to end the living relationship and then sends the actual letter by post.
But no matter what type of lease termination you choose, make sure that it is sent in good time.
If the right date, usually the 15th or the end of the month, is missed and you don't have a buffer, this can quickly mean a month's additional rent.
If something other than the written form has been chosen, there should always be enough buffer time to be able to submit it later.