Paderborn Local Court, judgement of 30.09.2022, ref. 51 C 90/21
If there is damp in the walls on the ground floor of an old building but no mould growth, this does not constitute a defect in the rented property that leads to a rent reduction in accordance with Section 536 (1) BGB. The landlord, on the other hand, is not entitled to have the washing machine and tumble dryer removed from the rented flat, even if there is a room in the basement for shared use. At most, he can demand that the appliances be installed professionally.
In the case underlying this decision, the plaintiff had reduced the rent because there was damp in the walls in the cellar and in her flat on the ground floor of a building constructed in 1924. She brought an action against the landlord and applied for the rent to be reduced and for the walls to be dried. The landlord suspected that the tenant was partly responsible and demanded back payment of the reduced rent and the removal of the washing machine and tumble dryer from the tenant's flat.
Facts
Tenant had damp walls in her old flat
There is a rental agreement between the parties that was concluded in 2019; the plaintiff rents a ground floor flat in a building constructed in 1924 from the defendant. The plaintiff uses a washing machine and a tumble dryer in her flat. There is a room in the basement of the building that can be used for this purpose by all tenants.
The plaintiff noticed considerable damp in the basement of the building as well as in the walls of her flat. When the defendant failed to remove the damp despite being notified by the plaintiff, she reduced the rent. The moisture constituted a defect in the rented property within the meaning of Section 536 (1) BGB.
Landlord saw tenant as liable due to improper ventilation
The defendant argues that the moisture does not constitute a defect as mould has not formed. It was also common for a building built in 1924 and it would therefore be disproportionate for him to have to remedy causes caused by the construction. In addition, the defendant suspected that the damp in the plaintiff's flat had in any case been caused by improper ventilation and the use of the washing machine and tumble dryer in the flat.
Paderborn Local Court
The Paderborn Local Court dismissed the action as unfounded. Both the cellar and the plaintiff's flat were not defective within the meaning of Section 536 (1) BGB due to the moisture found. The defendant was therefore entitled to payment of the rent withheld due to the reduction. However, there was no entitlement to the removal of the tumble dryer and washing machine.
Local court recognised the moisture as complying with the building standard
With regard to the absence of defects in the cellar, the court stated that if, as here, no separate condition of the rented premises had been contractually stipulated, then the condition merely had to comply with the regulations applicable at the time the building was constructed. This was the case here. An expert found that there was considerable moisture in the basement rooms, but that this was in line with the current building standards. Mould growth was not detected.
In the court's opinion, the moisture in the plaintiff's flat also did not constitute a defect leading to a rent reduction. An expert stated that very high moisture levels were found up to a height of one metre above the floor. This was due in particular to inadequate vertical sealing, which was common at the time the building was constructed. There is currently no risk of moisture rising further. Mould was not found there either, only moisture-related salt efflorescence, which had caused the plaster to crumble. The expert also stated that mould growth could be expected at this level of humidity if the plaintiff were to ventilate the rooms improperly. As there was no evidence of mould growth, ventilation errors were ruled out.
Despite expert reports to the contrary, the court ruled that there was no rental defect
Contrary to the expert's assessment, who considered such pronounced dampness in living spaces to be unacceptable, the court did not see this as a defect entitling the tenant to a rent reduction. The dampness did not restrict the use of the flat. Only the crumbled plaster impaired the use of the flat, but only insignificantly at a height of up to one metre above the floor in accordance with Section 536 (1) sentence 3 BGB.
Furthermore, the court did not see any claim by the defendant against the plaintiff for removal of the tumble dryer and washing machine, as these were not the cause of the damp according to the expert's statements. The plaintiff had complied with the contractually agreed obligation to provide information about the installation of the appliances in her own home. Only proper installation could be demanded, but this was not criticised by the defendant in the present case.
Source: AG Paderborn
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant changes in the subject matter, liability and guarantees are excluded.Important Note: The content of this article has been prepared to the best of our knowledge. However, due to the complexity and constant changes in the legal field, we exclude liability and warranties.
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