DECISION
In the appeal proceedings
xxx
– Applicant and complainant –
Legal representative:
Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
against
Region Hannover xxx
– Respondent –
Joined by:
Jobcenter Region Hannover xxx
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on August 30, 2016 in Celle through Judges xxx, xxx and xxx:
Upon the applicant's appeal, the decision of the Social Court of Hanover of May 20, 2016 is overturned insofar as it rejected the application for legal aid.
The applicant is granted legal aid without installment payments for the first instance and lawyer Adam, Göttingen, is appointed as his counsel.
Extrajudicial costs for the appeal proceedings are not reimbursable.
REASONS
The applicant and appellant (hereinafter: applicant), who is currently receiving benefits under the German Social Code, Book II (SGB II), seeks preliminary legal protection to have his rent arrears covered (a maximum of three months' rent plus additional utility payments from the years 2013 to 2015; however, according to the applicant, only one month's rent is actually outstanding). The Social Court (SG) of Hanover rejected the application for a preliminary injunction by order of May 20, 2016 (the appeal against this order is pending under case number L 8 SO 165/16 B ER) and simultaneously rejected the application for legal aid for the proceedings. The applicant filed an appeal against this decision on May 24, 2016.
The requirements for granting legal aid (§ 73a SGG in conjunction with § 114 ZPO) were met at the time the case was ready for a decision by the Social Court. The legal action before the Social Court offered sufficient prospects of success within the meaning of § 114 ZPO and was not frivolous. Given his personal and financial circumstances, the applicant, who continues to receive benefits under Book II of the German Social Code (SGB II), cannot afford the costs of litigation; therefore, he should be granted legal aid without installment payments.
The sufficient prospects of success are to be affirmed here according to the summary review to be carried out in the legal aid proceedings, because it cannot be ruled out that the applicant's request could have been successful up to the expiry of two months since the eviction action filed with the Local Court (AG) of Hanover on March 1, 2016.
As the Social Court correctly recognized, the applicant's claim for the assumption of his rent arrears could arise against the joined party, the social welfare agency (SGB II), pursuant to Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), or against the respondent, a social assistance agency, pursuant to Section 67 of the German Social Code, Book XII (SGB XII). In any case, a claim against the joined party was not entirely implausible when the application was received by the Social Court. Based on the eviction notice submitted with the application, the applicant was facing the threat of losing his home. The joined party's statements (brief dated April 21, 2016) regarding the actual payment arrears should not have been accepted as accurate without further investigation.
Had the intervener been obligated to pay, the loss of the apartment could still have been averted. According to Section 569 Paragraph 3 No. 2 of the German Civil Code (BGB), a (residential) termination becomes ineffective if the landlord is paid the outstanding rent and compensation due under Section 546a Paragraph 1 of the BGB no later than two months after the commencement of legal proceedings for eviction, or if a public authority undertakes to make such payment. Here, the eviction lawsuit of February 29, 2016, was received by the Hanover Local Court on March 1, 2016, and, according to the certificate of service, was served on the plaintiff there, the applicant in these proceedings, on March 26, 2016, thus becoming pending (Sections 253 Paragraph 1, 260 Paragraph 1 of the German Code of Civil Procedure (ZPO)). Payment to the landlord, with the consequences of Section 569 Paragraph 3 of the BGB, could therefore have occurred by May 26, 2016.
Given such an unresolved situation, a decision on the application for a regulatory order based on a balancing of interests would have been possible, and the sufficient prospects of success required for the granting of legal aid were present.
Whether a claim for benefits under Section 67 of the German Social Code, Book XII (SGB XII) would also have been possible against the respondent need not be examined in more detail here.
Grounds for an injunction were clearly present in view of the termination of the tenancy.
The appointment of legal counsel is based on Section 121 Paragraph 2 of the German Code of Civil Procedure (ZPO).
Costs of the appeal proceedings are not reimbursed pursuant to Section 127 Paragraph 4 of the ZPO.
This decision is final and not subject to appeal (Section 177 of the German Social Court Act (SGG)).
