Regional Court Lübeck, 15 February 2018, Ref.: 14 S 14/17
Pursuant to Section 91a of the German Code of Civil Procedure (ZPO), it is stipulated that if the parties have declared the legal dispute to be settled in the main proceedings at the hearing or by submitting a written statement or on the record of the court registry, the court shall decide on the costs at its reasonable discretion, taking into account the state of the case and the dispute to date. The same shall apply if the defendant does not object to the plaintiff's declaration of settlement within an emergency period of two weeks from the service of the pleading, if the defendant has been informed of this consequence in advance.
This means that the plaintiff who initially brought an admissible and well-founded action, which subsequently became inadmissible or unfounded due to a finalising event, can avoid the burden of costs. This is because, according to the current state of facts and disputes, the defendant is likely to have been liable for costs prior to the finalising event if the action was well-founded.
The situation is different in the case of withdrawal of the action pursuant to Section 269 ZPO. According to this, the action can be withdrawn without the defendant's consent until the start of the defendant's oral hearing on the merits. If the action is withdrawn, the legal dispute shall be deemed not to have become pending; a judgement that has already been issued and is not yet final shall become ineffective without requiring its express cancellation. However, the plaintiff is obliged to bear the costs of the legal dispute, unless they have already been recognised as final and absolute or are to be imposed on the defendant for another reason.
In the judgement below, the Regional Court of Lübeck had to decide, among other things, which party was to be ordered to pay the costs of an application that was made by the Local Court but not taken into account in the judgement. There was no application for rectification. The Regional Court ruled that in this case the costs were to be awarded against the plaintiff. The lis pendens of the application had lapsed due to failure to comply with the time limit under Section 321 ZPO, therefore it appeared appropriate to apply Section 269 (3) sentence 2 ZPO, as it was in the plaintiff's hands to file a corresponding application to supplement the judgement. Applying Section 91a ZPO would lead to the result that the defendant would also have to bear these costs. However, there was no titled or legally enforceable judgement on this part, so that the plaintiffs had to sue for it again. This case is therefore closer to Section 269 ZPO than the situation under Section 91a ZPO, even if the application is well-founded.
Facts of the Case:
The plaintiffs were tenants of a flat, the defendant was the landlord. The plaintiffs sued to establish their entitlement to a rent reduction and to assert a right of retention. They demanded an advance payment to remedy the defects.
Plaintiffs had rented an old flat from the defendant
The parties had a tenancy agreement for a flat on the ground floor with 2.5 rooms and a living space of 60.92 m2. The joint tenancy had been concluded with the plaintiff's legal predecessor and had existed since 16 July 2008.
Section 8 (1) of the contract stated, among other things, the tenant's obligations with regard to handling the rented property: "He must, in particular to prevent damage caused by moisture and frost, ensure sufficient ventilation and heating of all the rooms left to him."
The basement of the house was located directly below the plaintiffs' flat. New plastic-glazed windows were installed in the rented property in 1990. In 2012, the defendant took humidity measurements in the flat and carried out painting work, particularly in the window area of the living room and in the area of the balcony door as well as in the area of the partition wall there and also in the bedroom.
Plaintiffs had reported mould and moisture as defects
On 12 June 2014, the plaintiffs reported the presence of mould and thermal bridges in their flat as well as dampness in their basement in writing and set a deadline of 26 June 2016 to rectify the defects. This was unsuccessful.
The plaintiffs argued that mould growth had been found that was not due to incorrect ventilation behaviour on the part of the plaintiffs, that thermal bridges would prevent furniture from being placed directly in front of external walls without mould forming on the walls, otherwise air exchange would not be ensured. This constituted a defect and would cause unreasonable ventilation costs.
According to the plaintiffs, these defects were caused by the construction site
A radiator was incorrectly installed and her cellar was also regularly wet, especially after heavy rainfall. The usability of the cellar is impaired. The plaintiffs are therefore claiming a rent reduction of 15% of the monthly rent and a right of retention of 30% until the defect is rectified. The costs for this would amount to 25,000 euros.
The plaintiffs applied for a declaration that the plaintiffs are entitled to reduce the monthly gross rent of currently EUR 489.41 per month by at least EUR 15%, i.e. EUR 73.41, since June 2014. They requested a declaration that the plaintiffs are also entitled to assert a monthly right to refuse performance in the amount of 30% of the gross rent of 489.41 euros, i.e. 146.82 euros, since June 2014 until the defects are permanently and professionally remedied or until the end of the tenancy (if the defects are not remedied), but not more than 2,936.46 euros in total due to the following defects:
- Thermal bridges that lead to a risk of mould, particularly at an outside temperature of -5°C and a humidity in the flat of 50% and a temperature in the flat of 20°C, especially in the area of the window connections, the windows and the balcony door, as well as in the area of the ceiling and exterior walls,
- Wetness in the basement corridor and in the applicant's basement room, especially after heavy rainfall.
The plaintiffs also requested that the defendant be ordered to pay the plaintiffs EUR 25,000.00 plus interest in the amount of 5 percentage points above the respective base interest rate since the pendency of the action.
The defendant landlord argued that the standard at the time of construction should be taken as the basis for the condition
The defendant requested that the action be dismissed. It opposed the plaintiffs' allegations. It had to be noted that the yardstick for the contractual condition of a rental property was the standard at the time of construction. There was no impairment of usability. The building was 6% better insulated than comparable properties.
The local court only partially upheld the claim. In particular, it recognised a right to refuse performance only in the amount of 10% of the gross rent of 489.41 euros, i.e. 48.94 euros, since June 2014, but not more than 978.82 euros in total, due to the following defects:
- Wetness in the basement corridor and in the plaintiffs' basement room.
In addition, the defendant was ordered to pay EUR 6,500.00 plus interest of five percentage points above the respective base interest rate since 1 April 2016.
After the local court partially upheld the claim, both parties lodged an appeal
Both the plaintiffs and the defendants have appealed against this judgement.
In their appeal, the plaintiffs criticise the view of the district court that they cannot assert any defect rights due to existing thermal bridges. The risk of mould, which had already occurred in the past, should be taken into account. The local court had not comprehensively assessed these facts in the judgement. There was no discussion of the argument that the furniture could not be placed directly in front of the exterior walls.
The plaintiffs argued at first instance that the defendant had already been informed of the mould infestation after moving in. As a result, the defendant only had the mould removed superficially by painting over it. However, the mould returned in the winter of 2016/2017. It was only noticed after the end of the oral hearing of the 1st instance.
In the grounds of appeal, they argued that the rooms were heated to between 22°C and 24°C and ventilated twice a day for around 15 minutes.
The plaintiffs filed a motion to amend the judgement of the Reinbek Local Court dated 23 December 2016, 17 C 288/15. December 2016, 17 C 288/15, to order the defendant to declare that the plaintiffs are entitled to reduce the monthly gross rent of currently EUR 489.41 per month since June 2014 by at least 15%, i.e. EUR 74.41, and that the plaintiffs are also entitled to to assert a monthly right to refuse performance in the amount of 30% of the gross rent of 489.41 euros, i.e. 146.82 euros, from June 2014 until the defects are permanently and professionally remedied or until the end of the tenancy (if the defects are not remedied), but not more than a total of 2.936.46 due to the following defects:
-The flat would be heated to 22° - 24° C, i.e. very warm, if there were thermal bridges, which would lead to a risk of mould, particularly at an outside temperature of -5° C and a humidity in the flat of 50% and a temperature in the flat of 20° C, particularly in the area of the window connections, the windows, the balcony door and in the area of the ceiling and external walls.
in the alternative, to refer the case back to the Reinbek Local Court, setting aside the judgement of the Local Court.
The defendant requested that the plaintiffs' appeal be dismissed. With its appeal, the defendant requested that the judgement of the Reinbek Local Court dated 23 December 2016, 17 C 288/15, be amended and the action dismissed in full.
The plaintiffs requested that the defendant's appeal be dismissed.
The defendant is of the opinion that the plaintiffs are not entitled to reduce the rent due to the defect "wetness in the basement corridor". The cellar was also not the subject of the rental agreement and therefore not the subject of a reduction in rent. An impairment of the cellar had also not been established by the expert. However, an impairment of use was required for a reduction. It was correct that slight moisture penetration of the external masonry had been detected on the wall, but this was so minimal that it did not justify a right to a rent reduction. The rented cellar was only a utility room that was used by the plaintiffs without restriction as a storage room.
As there is no entitlement to a rent reduction, there is also no entitlement to payment of an advance on costs.
An advance on costs should not have been awarded as the predicted costs for the repair of the cellar walls (No. 5.2.) had to be reduced. It was not possible to understand how the local court had calculated the advance on costs of 8,500.00 euros. The expert had forecast costs of 5,450.00 euros. This contradicted the statements in the judgement.
Judgement of the Lübeck Regional Court
The parties' admissible appeals are partially justified and lead to the decision being amended.
On the plaintiffs' appeal, the decision should be partially amended.
The Regional Court initially interpreted the application for determination of the right to a reduction in accordance with Sections 133, 157 BGB to mean that the plaintiffs were not only seeking the reduction quota of 15% as a minimum quota, as the application would otherwise be inadmissible in the absence of sufficient certainty within the meaning of Section 253 (2) No. 2 ZPO.
Regional court saw right to reduction due to mould and thermal bridges
This application was justified. The plaintiffs are entitled to a right to a reduction under Section 536 (1) sentence 2 BGB, as there is a risk of mould growth in the flat due to the thermal bridges identified by the expert in the initial report.
If the rented property has defects at the time it is handed over that cancel or (significantly) reduce its suitability for contractual use or if such a defect arises during the rental period, the rent is reduced by law in accordance with § 536.
A defect exists if the "actual condition" deviates from the "intended condition" of the rented property. In this context, the standard of interpretation for use in accordance with the contract is the public opinion. Consequently, according to the rules of interpretation {§ 133, 157, 242 BGB), the purpose of use and the principle of good faith, the standard that the tenant can expect on the basis of his contract must be examined.
If the construction method is to be assessed, the determination of the standard is based on the time of construction of the building. This is decisive for the standard to be expected. In particular, the age and type of the building must be taken into account. However, the tenant is entitled to expect a certain minimum standard according to today's standards in terms of the public perception, even without a special agreement. This includes the flat being free of mould.
Moisture damage and signs of mould constitute a legal rental defect within the meaning of Section 536 (1) BGB, regardless of their cause. The contractually owed use is also impaired as a result.
The assessment of the defect should not be based on the time of construction
The defect is not precluded by the fact that the applicable DIN regulations were observed during construction and the rules of architecture were followed.
This is also not decisive for the standard owed. The tenant can also demand that the flat in an old building is free of mould, even if the flat was built according to the building standards of the time and the causes of mould infestation were not yet sufficiently known at the time of construction. This is a minimum standard of contemporary living that must be adhered to.
The existence of a concrete risk that the rental use could be significantly impaired at any time by the condition in question is sufficient for defectiveness. The fear that the condition of the item would lead to the damage occurring could be sufficient for this. The tenant does not have to be aware of the risk.
The risk should be assessed from the perspective of a "reasonable average tenant". However, abstract or unfounded dangers are not sufficient. Scientific evidence is required. The realisation of defects that lie outside the rental object should not be remote. Sources of danger that were not foreseeable when the contract was concluded and there were no indications of such an effect are not sufficient. A more or less concrete risk of damage is therefore required.
The court bases its decision on the following motive: A rental object with a relationship to a source of danger is not only considered defective when the tenant actually suffers damage, but already when and because he can only use it in the fear of danger materialising.
Consequently, latent dangers could also impair the value and use of the item if there is a justified concern of danger.
According to Section 536 (1) sentence 3 BGB, the impairment of use must not be "insignificant". The same standards apply to risks arising from the nature of the rented property itself, as the landlord is even more liable for these.
A justified risk is also given if the tenant can only prevent the occurrence of damage by only using the rented property with restrictions to which he is not contractually obliged.
An above-average cautious tenant should not be placed in a worse position than the average tenant for whom the damage would occur and who would then assert the claims against the landlord.
Without special contractual agreements, a tenant is generally only obliged to ventilate the room twice a day for five to ten minutes and to keep the indoor temperature in the bedroom at a minimum of 16° C and in all other rooms at a minimum of 20° C.
It must be taken into account that a rented flat must allow for a wide range of living habits before it can be assumed that it is being used in breach of contract. The tenant must therefore only ventilate to a reasonable extent, regardless of which flat they live in. If excessive and uneconomically hot heating and ventilation is necessary to prevent moisture damage, the building is defective. It must be possible to keep a flat free of mould with normal everyday ventilation behaviour.
The rented rooms must therefore be created in such a way that they can be kept at a level of approx. 55% relative humidity without great effort and without mould forming, for example. Airing the room twice a day for about ten minutes at an average indoor temperature of 20°C would be sufficient. Therefore, the need to ventilate three times for approx. nine minutes is already an excessive requirement.
In such a case, a special contractual agreement would be required. The usual twice daily airing could be included in the normal daily routine of a tenant. It is customary to ventilate in the morning after getting up and in the evening to ensure sufficient air circulation; the tenant is also regularly to be found in the flat at these times.
The building fabric must not lead to the tenant having to ventilate excessively
It is the landlord's duty to ensure that the apartment can be used for the tenant's normal lifestyle in accordance with the contract. The tenant must be allowed to leave the flat during the day. This is no different for pensioners. They should also be able to leave the flat at any time during the day.
The need to constantly heat the bedroom to 20° C is also unreasonable, as 16° C to 18° C is normal. Additional insulation or heating sources as well as moving the furniture away from the outside walls are also unreasonable.
The tenant should be able to place furniture anywhere in the flat. This is part of the usability of a living space. In the present case, it was therefore unreasonable to have to move the furniture away from the wall. If the furniture is not moved away and mould develops as a result, this is only not a defect in the rental property if an agreement on the necessity of doing so has been concluded beforehand.
It is not considered normal living behaviour to have to constantly measure the humidity with special aids.
In a previous ruling, the BGH had stated that in a one-room flat of 30 square metres, the apartment should be ventilated four times during the day by tilting the windows for around three to eight minutes when two people are present. However, tilt ventilation is not as effective as shock ventilation and must be carried out many times more often or for longer.
Exclusion of defect rights can only be assumed if the tenant is responsible for the defect. This would be the case if the formation of the defect was to be expected. Section 276 (1) sentence 1 and (2) of the German Civil Code (BGB) are taken as a basis and examined taking into account the usual and expected ventilation behaviour of a tenant.
If it is therefore certain that a rented flat cannot be kept free of mould despite compliance with the usual and contractually owed heating and ventilation behaviour with an average moisture production for the given use, the flat is defective without the actual living behaviour being relevant.
Thus, according to these principles, there is a risk of mould formation due to geometric thermal bridges, which constitutes a rental defect.
The AG had not made any binding findings of fact within the meaning of § 529 Para. 1 No. 1 ZPO with regard to the existence of a rental defect. This is because it is necessary for the utilisation of evidence to be established in the minutes in accordance with Section 160 (3) ZPO, if necessary together with the discussion of evidence in accordance with Section 285 ZPO.
However, there were no indications that the file of the independent evidence proceedings had been consulted and had been the subject of the oral hearing or that the results of the evidence had been discussed.
Therefore, the chamber had to make its own findings. With reference to the result of the independent evidence proceedings of the local court, it is clear that there is a risk to the home.
The assessment must be based on current standards and regulations
According to current standards, the risk of mould formation must be reduced by taking appropriate measures when planning and constructing buildings. A target value for the room-side surface temperature is 12.6° at the most unfavourable point, which is also used as an assessment criterion for the "lowest room-side surface temperature before mould infestation" from a building physics point of view for the time of construction of the existing building, as these variables have not changed.
If the temperature falls below the lowest value of DEN ISO 13788, there is a risk of mould infestation occurring in the relevant areas, regardless of the construction period of the building. The "lowest room-side surface temperature before mould infestation" should therefore be used as an objective assessment criterion. The normative boundary conditions according to DIN 4108-2:2003-07 would be as follows: Indoor air temperature 20° C, relative indoor humidity 50%s Outdoor air temperature -5° C.
In the present case, the target value for a room-side surface temperature of at least 12.6° C required from a building physics point of view to avoid the risk of mould is not undercut in the area of the outer wall centre, whereas in the outer wall corners there is a calculated room-side wall surface temperature of 11.2° C, so that the target value is not met.
For an assumed furnishing on the exterior wall, the calculated room-side wall surface temperature is only 7.0° C, rounded up. In this respect, the target value required from a building physics point of view to avoid the risk of mould is significantly undercut. In the area of the window reveals, the surface temperature on the room side is rounded down to 9.8° C, so that the target value is also undercut here.
There is thus a scientifically verified and therefore not merely remote risk of mould formation in the area of the outer wall corners, the window reveals and generally in the area of the outer walls in the event that they are furnished.
This would not change if the plaintiffs had not wanted to furnish the wall at all, because the actual impairment of the tenant's use is not important. It is sufficient if the tenant cannot or does not want to use the rented premises at all or in the intended manner.
The fact that the flat could not be fully utilised because no furniture could be placed against the outside wall constituted a reduction in contractual use.
It is not reasonable to expect the plaintiffs to wait until the damage has occurred, as it is not merely a remote abstract danger.
Falling below the limit values proves the existence of a hazard. Such technical regulations are precisely intended to define the existence of hazards. Especially in the case of substances that are hazardous to health, such regulations must be observed. This does not change even if not every mould fungus poses a risk to health.
Below the threshold value for the risk of mould growth, it is not possible to differentiate between probabilities. Adapted living behaviour that could prevent mould is irrelevant, as reasonableness is subject to legal assessment.
In particular, the tenants are not at fault if they could not recognise that the moisture damage was caused by a building defect or a building condition that was particularly susceptible to damage and that certain changes in living habits were necessary to prevent the damage.
If the flat is susceptible to damage, special instructions from the landlord are required
The landlord would need to provide information on the type of heating and ventilation in a flat that is susceptible to damage. Otherwise, the tenant would have to be expected to commission an expert beforehand to show him how to ventilate the flat in the specific individual case, how often and in what form. This could not be the tenant's obligation.
If it is therefore clear that the formation of mould cannot be prevented by a contractually owed heating and ventilation behaviour, the actual ventilation behaviour of the tenants is no longer relevant. Determining the individual moisture production of a tenant in detail and over a longer period of use would not be practicable or reliable.
Humidity caused by cooking and showering would be counteracted by airing the room for ten minutes twice a day, which is reasonable.
The court also mentions that, according to its findings, even three ten-minute bursts of ventilation would not have eliminated the risk of mould growth.
As the tenancy agreement does not contain any deviating agreement, it is also irrelevant whether the clauses would stand up to scrutiny in accordance with Section 307 BGB. In such an examination, high demands would have to be placed on a clause restricting the main performance obligation. The tenant may only be burdened with recognisable, concretely manageable risks. The risk of mould growth is an excessive burden for tenants who are not regularly trained in building physics.
However, the tenancy agreement does not contain such a provision. It only describes the tenant's regular obligation to ventilate and heat.
In addition, the tenant often does not have the knowledge of the interrelationships in building physics to be able to recognise which changes in ventilation and heating behaviour are required in detail in order to be able to compensate for defects in the old building in the above-mentioned sense.
The statement that the risk could be reduced in winter if there is a humidity of 40% in the centre of the room is irrelevant. This is because the DIN standard has the (rebuttable) presumption of being the recognised rule of technology and therefore also the benchmark for the calculation.
The value of 50% in the DIN is aimed at planners and includes a certain safety margin of 10%, which should also be granted to the tenant as far as the assessment of the risk of mould is concerned. The tenant should be allowed to avoid mould formation in a reasonable manner even without a measuring device.
According to the expert, the right to reduce the purchase price was to be limited to the period from October to March, as the risk only existed for this period.
For reasons of clarification, it was taken into account in the operative part that the defect entitling the tenant to a reduction did not lie solely in the existence of thermal bridges, but in the resulting risk of mould formation, even if the tenant complied with the duties of care owed. This does not violate Section 308 (1) ZPO, as it is within the plaintiff's desired legal protection objective and does not constitute an aliud.
The tenants were therefore not only allowed to reduce the rent but also to withhold part of it
The application under 2. is admissible and largely justified. The plaintiffs are entitled to the defence of non-performance of the contract pursuant to Section 320 (1) BGB, as they have a counterclaim for the removal of defects pursuant to Section 535 (1) BGB that can be retained. This resulted from the risk of mould growth.
The amount of the retention quota is three times the amount of the monthly reduction and is limited to four times the amount of the monthly gross rent. The right to refuse payment in accordance with Section 320 (1) sentence 1 BGB is generally subject to a time and amount limit, as the reduction already creates a balance between performance and consideration.
However, in the case of a continuing obligation such as a lease, the imbalance caused by the defect can only be remedied for the future. For the periods of time that have already elapsed, the defect-induced reduced usability inevitably remains. However, the tenant had received compensation for this under Section 536 BGB, as he only had to pay a reduced rent. However, the fact that the right of retention only covers future periods of use must be taken into account when assessing the scope of the right of retention within the scope of Section 320 (2) BGB.
The right to refuse performance under Section 320 of the German Civil Code (BGB) may therefore not be calculated without a time limit on a multiple amount of the monthly reduction or the costs of remedying the defect.
The assertion of the right of retention is not precluded by the assertion of a claim for advance payment in the first instance for the removal of the defect. The local court had not included this application in the facts of its decision and had neither made a correction of the facts in accordance with § 320 ZPO nor a supplement to the judgement in accordance with § 321 ZPO in the absence of an application. The lis pendens of this claim had therefore lapsed. The application had also not been taken up again in the appeal instance. The right of retention could therefore be asserted in relation to this defect.
However, the determination of an existing right of retention could only be made for the future, as there was no concrete interest in a declaratory judgement for the past period pursuant to Section 256 (1) ZPO. The finding that the parties had a right of retention in the past was not worthy of protection as they had not withheld any amount.
In contrast to a rent reduction, the rent paid despite the existence of a right of retention cannot be reclaimed in accordance with Section 812 BGB or the special Section 813 BGB, as the standard does not cover dilatory defences.
The defendant's appeal is partially successful on the merits.
It remains the case that the plaintiff is entitled to a reduction in rent in relation to moisture or dampness in the plaintiff's basement room, as there is a defect within the meaning of Section 536 (1) sentence 1 BGS.
According to an expert opinion, the court came to the conclusion that both the masonry on the outer wall of the cellar room rented by the plaintiffs and the cellar corridor leading to it showed signs of moisture penetration. Colour peeling in the outer wall area and wall no. 4 had been detected, which would indicate the presence of moisture.
By using the GANN Hydromette electronic measuring device and the surface measuring probe, it was possible to determine measured values of 50 digits on average in the upper area and measured values of 125 to 145 digits in the lower area of the first three masonry layers. Moisture in the basement masonry can be assumed at 100 to 150 digits and dry masonry at 60 to 80 digits. Clear signs of moisture ingress from the outer wall area had therefore been detected, the cause of which was age-related failure of the vertical outer wall sealing.
The technical possibilities at the time of the construction of the building would allow for a paintable sealing of components in contact with the ground. This also existed at that time. However, the coating materials used would have a lower wear reserve compared to the sealing materials provided for in today's recognised rules of technology and would therefore only provide temporary protection against the penetration of ground moisture or seepage water.
An exclusion of the reduction pursuant to Section 536 (1) sentence 3 BGB was not given. There is no only insignificantly impaired fitness for use. This is only the case if it is not noticeably significant or if the defect is easily recognisable and can be rectified quickly and at low cost. The use of the rooms is not relevant for the assessment, which is why the absence of the tenants does not indicate insignificance.
The impairment of use in the cellar is noticeable for the plaintiffs. The cellar is intended for storing objects that are usually placed on the floor and against the wall. This possibility was restricted by the moisture. The building defect could not be remedied with little effort.
It was irrelevant that the plaintiffs used the cellar completely, as only the abstract impairment of use was relevant.
However, the situation is different in the case of moisture penetration in the basement corridor, as there is no noticeable impairment of use for the tenants. It was only used for access to the cellar and not for the storage of objects, which is why Section 536 (1) sentence 3 BGB excludes a right to reduce the rent.
The court assumed a reduction rate of 5% for the rented cellar, based on relevant case law.
However, the appeal was justified with regard to a right of retention awarded due to the dampness and moisture in the basement corridor and basement room, as the plaintiff was not entitled to such a right of retention under Section 320 (1) BGB due to the dampness in the basement.
It failed due to the simultaneous request for an advance on costs for this defect, which, however, was granted by the local court at the same time as the requested determination.
The defence of non-performance of the contract pursuant to Section 320 BGB is a means of exerting pressure to enforce the claim for performance under Section 535 BGB. If the tenant no longer has an interest in fulfilment, the right of retention no longer applies. However, the demand for an advance payment for the self-remedy of the defect indicates that the claim for fulfilment is no longer being seriously pursued.
This is similar in the law on contracts for work and services, where it is recognised that both rights are mutually exclusive and that the customer cannot simultaneously demand the rectification of defects and an advance on costs. Also, a claim for advance payment by the client can only exist from the outset to the extent that the client has not or may not retain the remaining remuneration for the work with regard to existing defects and use this to remedy the defect (Section 242 BGB).
Here, too, the plaintiffs should be referred to the claim for advance payment, as it is closer to their interest in legal protection.
The appeal against the judgement to pay an advance for the rectification of defects was unsuccessful. The plaintiff is entitled to payment of an advance for the rectification of defects under §§ 536a Para. 2 No. 1, 242 BGB due to the moisture penetration of the cellar room (see above). The party entitled to substitute performance is entitled to an advance payment in the amount of the costs likely to be required to remedy the defect, which exists in the event of default by the landlord.
The defendant's obligation to remedy the defect arises from Section 535 (1) sentence 2 BGB, with which it has been in default since 27 June 2016 in accordance with Section 286 (1) sentence 1 BGB. A deadline was set by letter from the plaintiffs on 12 June 2016 until 26 June 2016, to which the defendant did not respond. In addition, there was a serious and final refusal of fulfilment within the meaning of Section 286 para. 2 no. 3 BGB, as the defendant also opposed its obligation in the lawsuit.
The necessary costs of remedying the defect were to be demanded. The Local Court had provided a correct justification for the amount awarded. The amount of the advance payment had been correctly estimated at 8,500.00 euros, including the costs of the expert. However, since only the costs for defects in the cellar room were justified, a reduction was not necessary because, in the opinion of the chamber, a rent reduction and thus, in the same way, an advance claim with regard to the wetness in the cellar corridor was ruled out.
As part of the decision on costs, the plaintiff was ordered to pay the costs of the (partial) application pursuant to Section 269 (3) sentence 2 ZPO, which was ignored by the local court in the proceedings at first instance and whose lis pendens had lapsed due to failure to observe the time limit under Section 321 ZPO. It appears appropriate to apply Section 269 (3) sentence 2 ZPO, as it was up to the plaintiffs to file a corresponding application to supplement the judgement. This deadline had been missed by the plaintiffs. Applying Section 91a ZPO would lead to the result that the defendant would also have to bear these costs. However, there was no titled or legally enforceable decision on this part, so that the plaintiffs would have to sue for it again. This would then result in the defendant also having to bear the costs for the second legal dispute - then in accordance with Section 91 ZPO - which would appear unfair. In contrast to Section 91a ZPO, the defendant had not consented to the lis pendens in the main action being cancelled. It was solely up to the plaintiffs to request a supplement to the judgement within the statutory period.
Source: Regional Court Lübeck
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