District Court Tiergarten, July 17, 2012, Case No.: 606 C 598/11
The claims for defects in German tenancy law are very similar to the claims for defects in German sales law:
According to § 536 of the German Civil Code (BGB), the landlord is liable for material defects without fault. As a legal consequence, rent reduction according to § 536 BGB is possible.
§ 536a (1) 1st case of the BGB further grants the tenant a claim for damages for defects that existed before the contract was concluded.
For defects that occur later due to fault or for delay in rectifying defects by the landlord, the tenant has a claim for damages under § 536a (1) 2nd and 3rd cases of the BGB.
Section 536a (1) nos. 1 and 2 BGB also gives the tenant a right to self-help.
Furthermore, § 536a (1) No. 1 and 2 BGB provides the tenant with a right of self-help.
The claim for reimbursement of expenses (§ 539 BGB) is not a defect claim, but is very similar to such claims.
However, if rectification of the defect is objectively impossible or economically too burdensome, the landlord may be relieved of the obligation to remedy the defect.
Facts of the Case:
With a newly constructed building, the landlord had bricked up the tenant’s kitchen and bathroom windows.
The defendant was the tenant of an apartment owned by the plaintiff. The plaintiff had acquired another property next to the disputed apartment and built a house on it, which was directly adjacent to the kitchen and bathroom windows of the apartment occupied by the defendant. The defendant had not agreed to this construction measure and subsequently reduced the rent.
After the tenant reduced the rent, the landlord terminated the lease and sued the tenant for eviction.
In response to the landlord’s lawsuit for payment and eviction, the defendant filed a counterclaim, demanding the restoration of the original condition.
Judgment of the District Court Tiergarten
The court ruled that the eviction claim was unfounded, but the landlord was obliged to reverse the neighboring building’s construction.
The District Court Tiergarten followed the defendant’s argument and ruled that the plaintiff’s claim was unfounded, while the defendant’s counterclaim was justified.
The plaintiff landlord was obliged to restore the use of the windows so that the distance between the windows and the outer wall of the neighboring building was at least three meters.
In particular, the plaintiff could not argue that this was impossible or involved such costs that it exceeded the limits of what was reasonable.
A case of objective impossibility would only exist if the demanded action were impossible for anyone. This condition was not met here, as it has been generally known since the fall of the Berlin Wall that walls can be removed.
The landlord must bear the high costs of restoring the previous condition
The landlord also could not invoke the high costs of restoring the previous condition under the principle of good faith, even if she was no longer the owner of the neighboring property. This is because she herself had created the situation by erecting the wall without reaching an agreement with the tenant.
Source: District Court Tiergarten
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