What is your performance in future trading

Lawsuit for the future - Lawsuit for future benefits in the event of significant rent arrears permitted

Guiding principle

An action by the landlord for future performance according to ยง 259 ZPO is permissible if the tenant has accrued arrears in rent and additional rental costs in an amount that exceeds the gross rent several times.


The landlord had given notice to terminate the apartment after the tenant had accrued rent arrears amounting to a multiple gross rent. The Federal Court of Justice gives the landlord the right of last resort. The action for future payment of rent or compensation for use is well founded. A suit for future performance can be brought if there is concern that the debtor will evade timely performance. This is the case here because the tenant owes the landlord the payment of significant arrears in rent.

Link to the decision

BGH, judgment of 4.5.2011 - VIII ZR 146/10


In principle, the landlord can only sue after the tenant has not paid the rent. However, if there is a considerable arrears in rent it is foreseeable that the tenant will not pay on time again in the future, the landlord can also sue for future performance to ensure timely payment. However, the circumstances under which the landlord can expect the tenant to pay in full on time in the future must be checked in each individual case.

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