District Court of Berlin, 07.12.2022, Case No.: 64 S 151/22
Dogs can also be kept and raised in an apartment. Ideally, a tenant should look for a dog with a calm temperament, one that barks little and doesn’t need much exercise. While young dogs, in particular, require a lot of movement and space, they tend to become calmer with age.
Nevertheless, conflicts between tenants and landlords can arise. In the case presented here, the landlord had generally prohibited the tenant from keeping a dog. The tenants challenged this in court.
Facts of the Case:
Tenants wanted to keep a dog in their apartment and sued for approval.
The plaintiffs in this case were tenants of a two-room apartment on the first floor of a multi-family house, and the defendant was the landlord. The plaintiffs kept a dog in the apartment, even though the landlord had refused to grant the required consent for keeping a pet, as stipulated in Section 11 of the rental contract. As a result, the landlord terminated the lease.
The tenants sued the landlord to establish that they could keep the dog without the landlord’s consent. Alternatively, they requested that the landlord be ordered to grant consent for keeping the dog.
Landlord terminated the lease and sued for eviction
The landlord counterclaimed for the eviction and return of the apartment, or alternatively, for the removal of the dog from the apartment.
The court of first instance (the district court) dismissed both the tenants‘ lawsuit and the landlord’s eviction claim. However, the court did uphold the landlord’s claim for the removal of the dog.
District court ruled in favor of the landlord, tenants appealed
The tenants then appealed to the Berlin Regional Court.
Decision of the Berlin Regional Court:
The Berlin Regional Court ruled against the district court and held that the provision in Section 11 of the rental agreement requiring the landlord’s consent for keeping a dog was invalid under Section 307 of the German Civil Code (BGB), as it unreasonably disadvantaged the tenants, contrary to good faith.
Regional court deemed the prohibition of dog ownership in the rental contract invalid
Clauses requiring the landlord’s consent for pet ownership are only compatible with the provisions of Section 307 BGB if the decision to grant consent is based „solely on understandable and verifiable objective criteria“ that focus only on maintaining the contractual use of the property. If no such objective criteria guide the landlord’s decision, the clause is tenant-unfriendly.ausschließlich von nachvollziehbaren und überprüfbaren sachlichen Kriterien“ abhängig gemacht werde, „die nur auf die Einhaltung des vertragsgemäßen Gebrauchs“ abzielen Fehle es hingegen an sachlichen Kriterien, an denen sich die Entscheidung des Vermieters auszurichten habe, sei die Klausel mieterfeindlich.
In this case, the clause provided no criteria for the landlord’s decision regarding consent to keep pets, which meant that it could be interpreted, in accordance with Section 305c (2) BGB, as leaving the decision entirely to the landlord’s discretion.
Clause must contain objective criteria to guide the decision
Dies ergebe sich auch aus einem Schreiben der Vermieterin, in welchem sie angab, die Hundehaltung sei „in all unseren Objekten nicht gewünscht„, weil es erfahrungsgemäß „immer wieder zu ProblemenThis interpretation was supported by a letter from the landlord, in which she stated that dog ownership was „not desired in any of our properties“ because it „repeatedly leads to problems.“ This made it clear that the landlord was not applying any objective review criteria in the form of a specific disturbance forecast for the individual case but instead rejected any dog ownership as generally „undesirable.“nicht erwünscht“ ablehne.
Since the clause on dog ownership in the rental agreement was thus invalid, there was no contractual provision, and it depended on a comprehensive balancing of the interests of all parties whether the specific dog ownership was covered by the permissible use of the property or not.
Objections to the dog ownership were not plausible
The objections raised by the defendant, which had been adopted by the district court, regarding the suitability of dogs of this breed for multi-family houses were significant but did not support a prohibition on dog ownership. The risks of a particularly high need for exercise, a strong protective instinct, and limited ability to be left unsupervised in the apartment were countered by the plaintiffs. They pointed out that both worked shifts, allowing them to alternate in caring for the dog, that they had years of experience in dog care and training, and that they could also rely on additional support from neighbors.
As a result, the tenants were allowed to keep the dog in the apartment, and the landlord’s claim for eviction and prohibition was dismissed.
Source: Berlin Regional Court
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