Federal Court of Justice, 29.02.2012, Case No.: VIII ZR 155/11
According to § 536 (1) sentence 1 BGB, the tenant is exempt from paying rent for the period during which the suitability of the rental property is impaired.
This means that tenants can claim a rent reduction from the landlord if the rental property exhibits a material defect or legal defect, or if the rental property lacks promised features.
However, to make the rent reduction effective, the tenant must comply with various requirements.
First of all, the defect must be reported to the landlord immediately.
Without reporting the defect, the tenant is not entitled to have the defect remedied and is consequently not entitled to a rent reduction. In the defect report, the defect must also be described in detail.
Additionally, the tenant must notify the landlord that they are obligated to maintain the apartment in a contractual condition. Furthermore, a deadline must be set for the landlord to remedy the defect, and it must be announced that the rent will be reduced by a certain amount until the defect is fixed.
Determining the appropriate amount for the rent reduction is often difficult for the tenant.
If the tenant additionally claims a rent reduction due to noise disturbances from neighbors, it can often be challenging to document this defect in a way that holds up in court. In such cases, a noise log is often required.
In the above-mentioned decision, the Federal Court of Justice had to decide whether the rental of a neighboring apartment to tourists constitutes a rental defect and what requirements should be placed on the documentation of resulting noise disturbances.
Facts of the Case:
The plaintiff was a landlord who rented apartments on a daily and weekly basis to tourists.
The defendants had been tenants of an apartment in Berlin since 1999. The plaintiff, who acquired the rental apartments in 2005, no longer rented vacant apartments to long-term tenants after the acquisition, but instead rented them as furnished apartments to tourists for short-term stays.
The defendants were neighbors and reduced their rent by 15% due to noise disturbances.
In a letter dated August 2007, the defendants reported that renting to predominantly young tourists led to significant impairments of their rental use, particularly in the form of noise and dirt. They threatened the plaintiff with a 15% rent reduction if the situation was not remedied.
From September 2007 to October 2008, the defendants reduced their rent payments by 15% monthly, citing the defects they had reported. From November 2008 to June 2009, they reduced their rent payments by 20% of the gross rent.
The landlord terminated the lease without notice, alternatively with proper notice.
In a letter dated January 2009, the plaintiff declared the termination of the lease without notice, alternatively with proper notice, citing the alleged rent arrears.
When the move-out date passed, the plaintiff sought eviction of the apartment.
The district court initially dismissed the claim. However, the court of appeals ruled in favor of the plaintiff, stating that the lease had been terminated by the proper notice in January 2009 because the defendants had been in arrears by more than two months’ rent at that time. The court also found that the defendants had not sufficiently substantiated specific impairments to their rental use.
Federal Court of Justice ruling
The Federal Court of Justice disagreed with the appellate court. The appellate court’s ruling did not withstand legal review.
The appellate court’s finding that the defendants had not provided specific evidence of impairments to their rental use violated their right to be heard (Art. 103 (1) GG).
Although the appellate court correctly concluded that merely renting vacant apartments to holiday guests and tourists does not, in itself, constitute an impairment of rental use, as such rental does not necessarily lead to disturbances for other tenants, the court should have considered how the specific use by holiday guests was carried out.
Federal Court of Justice found the neighbors‘ submission sufficient to justify a rent reduction.
Vielmehr komme es entscheidend darauf an, wie die konkrete Nutzung durch Feriengäste ausgestaltet sei.
The decisive factor was how the holiday guests actually used the apartments. Contrary to the appellate court’s view, the disturbances caused by the plaintiff’s rental practices, as described by the defendants, went beyond minor or occasional disturbances, which are often unavoidable when several parties live in the same building. The plaintiff’s business model attracted young city tourists, and there were almost daily disturbances, especially during normal quiet hours (after 10 p.m.), caused by loud parties.
Thus, the appellate court violated the defendants‘ right to be heard by dismissing their concrete description of disturbances with a general statement that the defendants had not presented disturbances beyond what could be expected in a central Berlin residential area.
Since the rent reduction under § 536 (1) BGB takes effect by law, the tenant only needs to present a specific material defect that impairs the suitability of the rental property for contractual use; the extent of the impairment (or a specific reduction amount) does not need to be proven.
For recurring disturbances caused by noise or dirt, a “log” is not required.
A general description of „party noises, music, noise in the hallway“ would suffice.
A general description outlining the type of disturbance (party noises, music, noise from cleaning crews in the hallway, etc.), the time of day, the duration, and the frequency with which they occur would be sufficient.
Source: Federal Court of Justice
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