Aachen Regional Court, 2 July 2015, Ref.: 2 S 327/14
One of the most frequent points of contention between landlords and tenants is mould growth in the rented flat and the resulting rent reduction. If the mould growth is caused by the building, the landlord is responsible; if the mould growth is the result of incorrect heating and ventilation behaviour on the part of the tenant, the tenant is responsible.
To prevent mould, the tenant should air the flat several times a day, especially in the morning and evening. Tenants should also make sure that the flat temperature is not too low (below 18 degrees) or too high (above 22 degrees) in spring, autumn and winter, as this also encourages mould growth.
However, even if it is established that the mould formation is due to the tenant's incorrect heating and ventilation behaviour, the landlord may still be responsible for the damage, namely if he has not complied with his duty to inform.
Facts of the Case:
According to the expert, there was mould growth because the tenant had ventilated incorrectly
The plaintiff in this legal dispute was the landlord of a flat, the defendants were the tenants. The defendants had contacted the plaintiff because mould had repeatedly formed in the defendants' bedroom. The plaintiff then commissioned an expert to determine the cause. According to his findings, the mould had formed because the tenant had placed the furniture directly against the outside wall.
Landlord demands reimbursement of appraisal costs from tenant
In order to avoid the mould, the room should have been ventilated by the defendants at least twice a day. Because the defendants had not done this, the plaintiff now demanded compensation from the defendants for the expert's costs in the amount of 454.58 euros. The plaintiff also invoked a clause in the tenancy agreement according to which a greater distance between the furniture was contractually agreed, insofar as this was necessary.
Local court had ordered the tenant to pay
The Local Court of Aachen, which was initially seised, upheld the claim and ordered the defendants to pay the expert's fees. The defendants appealed against this decision to the Regional Court of Aachen.
Judgement of the Aachen Regional Court
LG Aachen saw no payment obligation on the part of the tenant
The Regional Court of Aachen ruled that the defendant's admissible appeal was fully justified. The plaintiff had no claim for damages against the defendants under Sections 280 (1), 535, 536c (2), 538 BGB because she had not provided evidence of a culpable breach of duty by the defendants and, in some cases, there was no compensable damage.
The plaintiff was initially not entitled to reimbursement of the remuneration for the out-of-court expert X in the amount of 454.58 euros.
It is true that the Regional Court was bound by the finding, made after taking evidence and not objectionable in terms of appeal law, that the parties had agreed that the party responsible for the damp problems in the rented flat in dispute should bear the expert's costs. This agreement should also be interpreted to mean that the cost burden should fall on the party who actually caused the damp - and not just according to the results of the expert report.
Local court had incorrectly assessed the court's expert opinion
Nevertheless, the defendant's obligation to pay was out of the question because they were not responsible for the mould in the bedroom within the meaning of this agreement. The plaintiff had not provided the corresponding evidence in the present proceedings. The district court's finding to the contrary is based on an erroneous assessment of evidence in this respect, which did not take sufficient account of the statements made by the court-appointed expert T at the hearing on 27 August 2014.
The basic distribution of the burden of proof in tenancy law, which the local court also assumed and which applies both in the area of Section 536a BGB and in the - here more relevant - area of application of Sections 280 (1), 538 BGB, must first be taken into account. Accordingly, in the constellation to be assessed here, the landlord must first prove that the cause of a defect does not lie within its sphere of risk. This is because in these cases, the landlord is presumed to be at fault, with the consequence of a reversal of the burden of proof and the possibility of proof of exoneration. Only when this proof has been provided does the tenant have a comprehensive duty of exoneration, whereby an open result of proof would be to the disadvantage of the landlord.
Tenants would have to ventilate excessively often
The plaintiff had already failed to provide this exculpatory evidence in the present case. Rather, according to the result of the taking of evidence, it was clear that the rental flat in dispute was defective because it required the tenants to ventilate it in an overly obligatory manner depending on the respective furnishings, without the plaintiff having sufficiently pointed this out.
At first glance, the written report of the court-appointed expert T speaks a different language. This is because it states that the mould formation that occurred in March 2013 was not due to defects on site. During his hearing on 27 August 2014, the expert had also originally stated that there were no special requirements for ventilation behaviour in the defendant's flat beyond the objectionable structural conditions. Rather, the mould infestation could have been avoided by normal ventilation behaviour. These - written and oral - statements were in principle suitable to support the result reached by the Local Court.
However, the expert had qualified his explanations to the extent that the furnishing of the defendant's bedroom was an additional problem for the sufficient ventilation possibilities. The cupboards on the outside wall would have led to a reduction in the interior surface temperature, which in turn would have had to be compensated for by increased ventilation and heating behaviour. The statement that even normal ventilation behaviour would have prevented the mould infestation only applies if the problem of the furnishings is not taken into account. As a result, it is clear that the cause of the damage was a combination of normal ventilation behaviour and furnishings or furnishings and a failure to ventilate/heat in an above-obligatory manner.
However, according to the correct and widespread view in the case law of the courts and in the literature, this initial constellation in turn requires a corresponding notice from the landlord, without which there would be no culpable breach of duty by the tenant. This is because it is in any case part of the contractual use that the tenant may in principle place his furniture anywhere near the wall, whereby the sufficient distance to avoid moisture is regularly maintained by rubbing strips. If a greater distance from the wall is required, the landlord must be informed accordingly. The plaintiff's objections to this are not convincing overall. On the one hand, the repeated accusation of tendentious commentary against the author of the literature cited does not replace an argument on the merits. Secondly, a general recommendation for the correct ventilation and placement of furniture - from whomever - does not constitute a range of duties to be fulfilled by the defendants within the meaning of Sections 280 (1), 535 (1) BGB; rather, this can only be established by an express or implied contractual agreement between the parties. Furthermore, the Regional Court also adhered to its previous case law, according to which the necessity of daily ventilation three to four times a day would constitute a defect in the rental property, which would at least have to be pointed out or which, as a contractual agreement on the quality of the rental property, would require a separate agreement between the parties. Contrary to what the defendants believe, the BGH did not decide anything to the contrary in the judgement of 18.04.2007 (VIII ZR 182/06) mentioned by them. And finally, it does not matter whether the landlord also has a duty to inform if the problem has not yet arisen in previous tenancies. For even if this question were to be answered in the negative, it would still not lead to the necessary positive finding of a culpable breach of duty by the defendants.
Furnishing clause in the rental agreement is too vague
The notices or agreements required by all of the above were not present in the case to be assessed here. In particular, they are not contained in § 9 no. 8, 9 of the rental agreement dated 7 July 2011. This is because the notices there do not go beyond general eventualities and have no individual reference to the specific rental flat. It is not clear from these provisions that the flat in question or the bedroom actually requires the furnishing described as possible in Section 9 No. 9. Above all, the wording according to which, in individual cases, a greater distance of the furniture from the outer walls is deemed to be contractually agreed if this is necessary, does not lead to a corresponding programme of obligations on the part of the defendant. This is because the clause is completely vague in this respect and, above all, represents a circular argument. No other information had been provided either; on the contrary, it was undisputed that the landlord had not provided any specific information in this regard.
Source: Aachen Regional Court
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