Local Court of Frankfurt am Main, 28/05/2020, Ref.: 33 C 2685/19
If there is noise, odour nuisance or vibrations in the vicinity of a rented flat, the question arises as to whether the tenant can reduce the rent as a result. They cannot do so, at least not if they were aware or should have been aware of the nuisance when they moved in. However, if the conditions in the neighbourhood of the rented flat change adversely, a rent reduction may be justified. However, this is only ever the case if the impairment also exceeds the materiality threshold.
In the case discussed here, the landlord and tenant were in dispute as to whether the tenant was entitled to reduce the rent because an existing pub had been converted into a shisha bar.
Facts of the Case:
Defendants had claimed rent reduction as tenants because a shisha bar had moved into the neighbourhood
The parties are in dispute about rent payment obligations and rent reductions due to noise pollution as well as the obligation to reimburse relocation costs and to pay damages.
The plaintiff was the landlord and the defendants were tenants of a flat on the top floor on the right-hand side of a building in Frankfurt am Main. A monthly rent payment totalling EUR 839.02 was agreed. The defendants initially did not make this payment in full for the months of May 2019 to July 2019, but withheld 167.80 in each case. The plaintiff demanded that the defendants pay EUR 503.40 plus reminder costs of EUR 5.00, i.e. a total of EUR 508.40. The defendants also did not pay the full agreed rent for the following months up to and including March 2020, but withheld EUR 167.80 per month up to and including January 2020, then only EUR 125.85 for February 2020 and EUR 83.90 for March 2020.
Two restaurants were already operating in the neighbourhood when the tenants moved in
When the defendants concluded the rental agreement in 2006 and moved into the flat, two restaurants were already operating in the immediate neighbourhood. This was initially a "Pilsner parlour" and a music club, which has been running so-called "DJ evenings", during which there was a high level of noise pollution. The plaintiff had rented the corresponding premises to intervener 1, which had rented the premises of the former "Pilsner parlour" later to the intervener to 2 for the operation of the restaurant "XYZ" had sublet. The operator of the music club also changed and the pub was then called "ZYX". This also offered the consumption of shisha pipes, the exhaust air of which was discharged via an exhaust air system located in the immediate vicinity of the windows of the defendant's flat whenever smoking took place in the pub.
Tenants felt disturbed by noise and odours
Since 2017, the defendants have complained to the plaintiff about noise and odour pollution from the restaurants and the exhaust air system.
In a letter dated 18 April 2019, the defendants informed the plaintiff that they would only pay a reduced monthly rent of EUR 167.80 in future due to the impairments. The reduction resulting for the month of April 2019 would be taken into account when transferring the rent for May and subsequently only the reduced amount would be paid retroactively.
In the legal proceedings, the landlord asserted the withheld rent reductions
The plaintiff landlady now claimed payment from the defendants and requested that the defendants be ordered to pay her EUR 1,176.43 plus default interest.
The defendant tenants in turn request that the action be dismissed and, by way of counterclaim, that the plaintiff be ordered to ensure that between 10 p.m. and 6 a.m. the living room and bedroom/study of the flat are not significantly affected by noise emanating from the catering business "ZYX" and is caused by loud music and singing/booing of the guests, as well as to determine that the rent was reduced in the amount made.
Judgement of the Local Court of Frankfurt am Main
The Local Court of Frankfurt am Main has now ruled that the claim is admissible and fully justified.
Pursuant to Section 535 (2) BGB, the defendants as tenants are obliged to pay the agreed rent to the plaintiff as landlord. It is not apparent from the parties' submissions that the rent would have been reduced in accordance with Section 536 (1) BGB due to a significant defect.
The extent to which the flat rented by the defendants is suitable for contractual use is assessed according to the agreed purpose of use and the view of the market, taking into account the principle of good faith (BGH, judgement of 29 April 2015, VIII ZR 197/14).
In No. 1 of the "House rules" is not a quality agreement that could be related to noise pollution penetrating from outside the property. The provision clearly only referred to the noise-causing behaviour of the residents and did not define the contractual use with regard to external noise.
The court considered it relevant what the tenant of a flat in the city centre had to expect
Accordingly, the agreed contractual use and thus also the immission standard with regard to noise is determined by what a tenant of a flat in the central inner city area, in whose immediate neighbourhood two restaurants are already operating at the time of renting, usually has to expect. It is true that a tenant does not have to accept every conceivable noise nuisance, even if he rents a flat in the knowledge that there is a restaurant in the building; in particular, operational changes can make a nuisance that was originally to be tolerated now appear unreasonable. The decisive factor in each case is whether the tenant had to expect the nuisance when renting and knowing the circumstances (Schmidt-Futterer, § 536 Rz. 127). It is undisputed that a music club was already operating in one of the pubs when the flat was rented, so that in view of the residential location, night-time noise from loud music was also to be expected. The defendants had admittedly stated during their informational hearing that the flat had been rented so quickly at the time that the defendants had not noticed the presence of the pubs. However, an objective view was required here, and there was no obligation on the part of the landlords to provide information if a restaurant was basically present and recognisable.
A significant change of use with regard to the described restaurants is not apparent from the parties' submission in the present case. The operation of a "Pilsner parlour" and a music club would in principle correspond approximately to the use of the new restaurant and the new premises described by the intervener re 2 with regard to noise pollution.
The tenants have not provided evidence that the limit values were exceeded
The defendants had not provided suitable evidence that the limit values for acceptable noise pollution had actually been exceeded in the defendants' flat. With regard to the specific measurements submitted, only party testimony had been offered as evidence in this respect, not the witness evidence offered with regard to the initially unsubstantiated submission that the values had been exceeded in the past. The plaintiff side had not agreed to a party hearing, so that this was out of the question. According to Section 448 of the German Code of Civil Procedure (ZPO), it was also not possible to take evidence from the parties, as there would be no evidence to support the defendant's disputed facts. A hearing of a party without the consent of the other party is only permissible if there is a certain probability that the disputed assertion is correct based on an overall assessment of the negotiations to date and the taking of evidence (Greger, Zöller, Section 448 para. 4). In the present case, such a probability did not arise either from the informational hearings of the parties involved or from other evidence. In view of the subjectively very different perceptions of noise pollution, it could not be concluded from the mere fact that the defendant had made numerous complaints over many years that noise had actually been caused that objectively exceeded the limits of what was reasonable and expected. With regard to the sound level measurements, the defendant explained during its informational hearing that it had not carried out any measurements itself recently, so that no sufficient probability could be assumed for the defendant's subsequent submission in the statement of 26 March 2020 that, contrary to the defendant's statement in no. 2, sound level measurements had been carried out after all. The measured values transmitted by the defendants to the plaintiff in 2017 were also not able to establish an initial probability in this respect, as the defendants themselves had admitted changes and in some cases also a reduction in noise pollution during their informational hearing.
The use as a shisha bar and the odours alone would not significantly affect residential use
The use of the premises as a shisha bar alone constitutes a particular impairment of the use of the flat that was not to be expected when renting the flat in view of the odour pollution described by the defendant due to the sweetish or burnt smell. In this respect, however, the defendant's submission did not result in a significant reduction in suitability within the meaning of § 536 I BGB. The defendants had explained that the odour could only be perceived when the shisha was actually lit in the pub and the extraction system was set in motion. Even on the basis of the defendant's very detailed minutes, this was only the case at certain points and not continuously. In the month of May, the defendant only recorded odour pollution for 3 evenings, in the month of June 7 evenings were affected, some of them by selective events. For the month of July, the defendant had recorded selective odour nuisances on 5 days, and for the month of August nuisances on 8 days, 5 of which were selective events. Measured against the total rental use, these certainly annoying impairments of residential use would not yet exceed the materiality threshold. With regard to this defect, the defendants are entitled to a claim for removal and injunctive relief, but the rent has not been reduced.
The exhaust air system would also not lead to a significant defect
The possible noise pollution caused by the exhaust air system directly in front of the defendant's windows, which was only installed long after the start of the tenancy, could also be taken into account as a defect, but in this respect, too, the activation of the exhaust air system was initially only documented for 4 days in June 2019 and one day in August in the very detailed noise log. As part of his informational hearing, the defendant described that it was assumed that the exhaust air system was only activated when the shisha was used in the pub, so that it could not be assumed that the noise pollution was continuous. In this case, there was also a lack of materiality of the defect pursuant to Section 536 (1) BGB. The defendants were also entitled to a claim for removal and injunctive relief in this respect, but the rent was not reduced.
Source: Local Court of Frankfurt am Main
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