Düsseldorf Higher Regional Court, November 19, 2013, Case No.: 10 U 112/13
The size of the leased property plays a crucial role in calculating the rent to be paid. According to established case law of the Federal Court of Justice, a deviation of more than 10% between the actual and the contractually agreed area results in a reduction of the rent and even entitles the tenant to terminate the lease without notice.
According to estimates by the German Tenants‘ Association, the agreed area does not match the actual area in about one-third of rental agreements.
There are various methods for calculating rental space. The method to be applied depends, among other things, on whether the lease concerns residential or commercial property. In the case of residential leases, the calculation is generally based on the Wohnflächenverordnung (WoFIV), or Residential Space Ordinance.
For commercial leases, DIN 277 is primarily used. This standard serves to determine the floor area and volumes of buildings or parts of buildings in structural engineering. It is also used for calculating residential space, although this is generally disadvantageous for the tenant, as, for example, roof areas, balconies, and basement rooms are counted as 100% of the living area.
In the above-mentioned ruling, the Düsseldorf Higher Regional Court dealt with the issue of area discrepancies and the determination of rental space by interpreting contractual agreements during the appeal proceedings.
Facts of the Case:
The parties had entered into a lease agreement for commercially used spaces in a multi-story building rented out to various companies.
The lease agreement included the following provision:
„Approximately 789 square meters GFA are leased. … The rental area was calculated based on DIN 277. The basis is the calculation of the gross floor area (GFA) including internal technical areas and proportionate common areas. … The rent amounts to 789 x 36 DM/sqm….“
Tenant Demands a 30% Rent Reduction
The tenant argued that certain areas not allocated for the tenant’s exclusive use should not be considered in the calculation of rent, even proportionately, and that there was thus a right to a 30% rent reduction. Consequently, the tenant reduced the rent by approximately €10,000 monthly over several years.
The tenant also argued that the standard contract terms regarding the determination of rental area and rent were unclear and, therefore, invalid according to Section 305c, paragraph 2 of the German Civil Code (BGB).
First Instance Finds No Significant Area Discrepancy
A court-ordered expert report in the first instance revealed a rental area discrepancy far below 10%. As a result, the first-instance court ordered the tenant to pay the outstanding rent.
Decision of the Düsseldorf Higher Regional Court
The Appellate Court Also Finds No Significant Area Discrepancy
The Düsseldorf Higher Regional Court confirmed the first-instance decision and ruled that the tenant was obliged to pay the outstanding rent.
Regarding future rent payments, the court also determined that the rent should not be reduced. Generally, a deviation of more than 10% between the actual area of a commercial rental property and the contractually agreed area constitutes a defect that justifies a rent reduction.
However, the tenant could not demonstrate and prove a defect in the rental property in the form of an area discrepancy of over 10%. This was to the tenant’s detriment.
No Invalid Provisions in the Lease Agreement
Furthermore, the lease agreement provisions were valid, contrary to the tenant’s view. The terms „gross floor area,“ „internal technical area,“ and „proportionate common areas“ are to be interpreted as „gross floor area,“ „technical function areas,“ and „circulation areas“ according to DIN 277. Since this results in a clear interpretation, the contractual provisions are not invalid due to ambiguity according to Section 305c, paragraph 2 BGB.
There was also no evidence of any unreasonable disadvantage to the tenant or any violation of the transparency requirement. Tenants, particularly in representative buildings with spacious, architecturally appealing staircases, lobbies, and other „common areas,“ must expect that these will generally be reflected in the rent.
Conclusion: Conclusion: Rent reductions due to area discrepancies must be carefully examined in advance. Otherwise, it may result in a payment order and possibly even an eviction order.
Source: Source: Düsseldorf Higher Regional Court
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