Hamburg Local Court, judgement of 22.12.2020 - 25a C 312/20
If the living space stated in the tenancy agreement exceeds the actual living space, the tenant can demand repayment of the rent overpaid in the subsequent period due to the incorrect calculation under the aspect of unjust enrichment if the deviation of the actual living space from the stated living space is more than 10 per cent.
However, this only applies if the living space information contained in the rental agreement is not intended to define the target condition of the rental property, but merely to describe it.
Facts
Tenant comes to the conclusion that the rental space is significantly smaller
The plaintiff in this case was the tenant, the defendant was the landlord. Both were in dispute over an alleged claim by the plaintiff due to a shortfall in the contractually agreed living space.
The plaintiff and the defendant had concluded a tenancy agreement for a flat. Section 1 no. 2 sentence 1 of the rental agreement contained the passage that the living space was approx. 66.00 square metres. In § 1 No. 2 S. 2, 3 MietV, it was further stated that this information could contain measurement errors and therefore did not serve to define the rental property, which is why the spatial extent of the rental property was determined solely by the above information on the rented premises.
In the period from June 2018 to May 2019, the net cold rent was EUR 1,189.65, and in the period from June 2019 to March 2020, the net cold rent was EUR 1,225.34 (cf. Sections 4, 5 MietV, Annex K1). The plaintiff had paid these amounts to the defendant 1.
An expert opinion confirms the tenant's suspicions
As it was suspected that the living space had been undercut, the plaintiff commissioned an expert report. The expert came to the conclusion that the living space was actually only 53.88 square metres. As a result, the plaintiff demanded that the defendant repay the excess rent paid on a pro rata basis, subject to a deadline, as the rent for the rental property in dispute was reduced accordingly due to a shortfall in living space of 18.36 %. In § 1 no. 2 sentence 1 MietV, a living space of 66 square metres was agreed as the target condition. § Section 1 no. 2 sentence 2 contradicts this and is non-transparent within the meaning of Section 307 (1) sentence 2 BGB and therefore invalid, otherwise the tenant's claims for a reduction in rent would be inadmissibly excluded contrary to Section 536 (4) BGB.
The landlord disputes this and considers the measurement to be incorrect
The defendants added that the living space stated in the contract was based on the calculation of living space by an architect's office and that they could have assumed that this information was correct. The deviations were - as they had now learnt - due to the fact that there had been changes compared to the original planning. The calculation of the external area by the expert commissioned by the plaintiff was incorrect. It was to be assumed that the expert had not included the narrow corridor around the penthouse, although this was part of the terrace. It should also be taken into account that a penthouse roof terrace in such a central location is something very special and therefore the area should be valued at 50 % and not just 25 %.
Decision of the Hamburg Local Court
Local court considers the difference in area to be insignificant
The Hamburg Local Court has now ruled that the plaintiff has no repayment claim against the defendants pursuant to Section 812 para. 1 sentence 1 Alt. 1 BGB, as the rent had not been reduced by 18.36 % in the months of June 2018 to March 2020.
The court can leave open whether the living space is actually only 53.88 square metres - as claimed by the plaintiff - as this would in any case not constitute a rental defect pursuant to Section 536 BGB.
The plaintiff invokes the fact that the actual rental area deviates significantly from the contractually agreed rental area in Section 1 (2) sentence 1 MietV as justification for the defect in the rental property that he is claiming, which constitutes a rental defect relevant to a reduction in rent within the meaning of Section 536 (1) BGB. Although this is correct in principle, according to established case law, it only applies if the specification of the rental area in the contract serves to contractually determine the target condition of the rental property and not merely to describe the rental property (see BGH, judgement of 10 November 2010, VIII ZR 306/09). Only if the area specification in the rental agreement is part of the performance programme to be fulfilled by the landlord can the fact that the actual area falls short of this justify warranty rights (see most recently OLG Dresden, judgement of 21 October 2020, 5 U 1257/20, para. 37). In this case, the area specification had not become part of the service programme to be fulfilled by the landlord.
The area stated in the tenancy agreement is for descriptive purposes only and is not a characteristic of the flat
The meaning of an area specification in the rental agreement is to be determined by interpretation. As this was a standard form tenancy agreement, the contractual clause was to be interpreted in accordance with the principles of the interpretation of general terms and conditions. General terms and conditions are to be interpreted according to their objective content and typical meaning as they would be understood by reasonable and honest contracting parties, taking into account the interests of the public normally involved, whereby the possibilities of understanding of the average contracting party of the user are to be taken as a basis (AG Tempelhof-Kreuzberg, judgement of 7 July 2014, 11 C 545/13, para. 15).
Measured against this, the interpretation of the rental agreement of 27 March 2018 shows that the living space specification contained in Section 1 (2) sentence 1 MietV was not intended to define the target condition of the rental property, but merely to describe it. This follows, as the defendants rightly point out, from the fact that in the two sentences immediately following the square metre specification it is made clear that the square metre specification does not serve to define the leased property and that the spatial scope of the leased property results from the above specification of the leased rooms (see also BGH, judgement of 10.11.2010, VIII ZR 306/09, para. 17 on the identical clause). The addition "due to possible measurement errors" does not change this. This is because there is no binding living space agreement even if the parties had only refrained from agreeing the stated number of square metres as the condition of the flat due to possible measurement errors).
Contrary to the plaintiff's assumption, the clause is not invalid for reasons of inconsistency or lack of transparency. Section 1 no. 2 sentence 1 MietV contains a "approx." and then pointed out in § 1 No. 2 S. 2, 3 MietV that this information could contain measurement errors and therefore does not serve to define the rented property. This makes it sufficiently clear to the objective recipient of this declaration that, due to the possibility of measurement errors, § 1 no. 2 sentence 1 MietV does not constitute an agreement on the quality of the area. The addition "due to possible measurement errors" also does not give the impression that the landlord only wants to protect himself against claims by the tenant in the event of minor deviations; rather, in view of the clear wording, it is clearly recognisable that, due to the possibility of deviations, the specification of the living space should not be understood as a target quality. Contrary to the plaintiff's opinion, warranty rights for defects are therefore not inadmissibly excluded contrary to Section 536 (4) BGB. It is merely stipulated that a certain specification in the rental agreement should not constitute the target condition of the rental property. At most, the plaintiff could invoke Section 305b BGB if additional statements made by the landlord during the contract negotiations or further individual details in the rental agreement had given him the impression that the living space mentioned was a binding description of the quality in deviation from Section 1 No. 2 S. 2, 3 MietV (see MüKo, BGB, 8th edition 2020, Section 536 marginal no. 14). However, the plaintiff had not submitted this.
Source: Hamburg Local Court
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 evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email at or send an email to info@mth-partner.de info@mth-partner.de