Parking in breach of contract - Towing away from a space on the property that is not included in the rent?
If a tenant parks their vehicle in a space on the property that is not included in the rent, then the landlord cannot simply have it towed away. Rather, according to Section 241(2) of the Civil Code (Bundesgesetzbuch, BGB), the landlord has an obligation resulting from the rental contract to show consideration; therefore, more lenient measures should be taken initially.
In the underlying case, the landlord repeatedly had his tenant’s company car towed away from a space on the property that was not included in the rent; moreover, the landlord demanded reimbursement of the costs incurred in this regard. The Local Court (Amtsgericht, AG) in Bottrop dismissed the claim (ruling of 28.11.2024 – 8 C 126/24, not legally binding; appeal before the regional court of Essen pending, 10 S 21/25). In the opinion of the court, the towing away operations violated the prohibition of harassment (Section 226 BGB) as well as the principles of good faith (Section 242 BGB). In the case of an existing rental agreement for an apartment and garage there would be a mutual obligation to show consideration. The landlord must therefore first issue a warning, ask for a cease and desist undertaking to be given, or assert claims in court for a cease and desist order. This will also apply even if, after a previous towing away operation, the tenant parks their vehicle in the same space again.
In the specific case, it would moreover have been possible for the landlord to ask the tenant directly at the location for the vehicle to be removed. The costs for setting posts to block off the space were likewise not reimbursable because this measure negatively impacted the tenant’s ability to make use of the garage that was included in the rent. A claim against the vehicle keeper was also ruled out because possession protection claims are limited by the prohibition of harassment and the principles of good faith.
