Federal Court of Justice, December 19, 2012, Case No.: VIII ZR 152/12
A rental defect exists when the actual condition of the rented apartment (= actual condition) deviates to the tenant’s detriment from the contractually agreed or expected condition (= intended condition) of the apartment.
To assess the defectiveness of the apartment, the actual condition must be compared with the intended condition of the rental property.
In the case of a legal dispute, determining the intended condition is particularly challenging if it is not recorded in writing in the rental agreement.
The intended condition can then only be inferred implicitly from references to plans, floor plans, or other descriptions of the rental property. It can also be inferred from statements made by the landlord during the apartment viewing.
In the above-mentioned decision by the Federal Court of Justice (BGH), the court had to consider under what circumstances it can be assumed that the landlord and tenant had implicitly agreed upon the low traffic noise level at the time of contract signing as the intended condition of the apartment. This would lead to a possible rent reduction in the event of an increase in traffic noise.
Facts of the Case:
Road diversion leads to more traffic noise in a rental apartment.
The defendants had been tenants of the plaintiff’s apartment on Schlossallee in Berlin since 2004. From June 2009 to November 2010, traffic heading towards the city center was diverted through Schlossallee due to extensive roadworks on Pasewalker Street, which had previously carried the traffic. The defendants reduced their rent starting in October 2009 due to the increased noise pollution.
Landlord sues for reduced rent
The plaintiff then sued the defendants for the payment of outstanding rent for the period from October 2009 to November 2010, totaling €1,386.19 plus interest.
District court finds the lawsuit partially justified
The district court initially ruled in favor of the plaintiff. However, the regional court, which heard the appeal, altered the ruling and ordered the defendants to pay only €553.22 plus interest. The plaintiff then filed an appeal against this decision.
Judgment of the Federal Court of Justice:
No entitlement to rent reduction due to traffic noise
The BGH did not agree with the regional court’s view and instead ordered the defendants to pay the full amount of rent. The BGH ruled that it is not sufficient to assume an implicit agreement on the apartment’s condition just because the tenant found the relatively low traffic noise advantageous when signing the contract and may have rented the apartment for this reason.
Rather, it is necessary for the landlord to recognize or have been able to recognize that the tenant considered the low noise level to be a decisive factor for the apartment’s condition, and for the landlord to have responded to this in some way that indicates agreement.
No condition agreement in the rental contract
The findings of the appellate court provided no evidence of such an implicit agreement. Therefore, to determine the contractually agreed condition of the apartment, customary practice, taking into account the purpose of use and the principle of good faith, would be decisive in the event of a dispute.
According to these criteria, the temporary increase in noise pollution did not constitute a defect justifying a rent reduction. The noise levels presented by the defendants, according to the findings of the lower courts, did not represent a high level of disturbance based on the 2009 Berlin rent index.
Tenants must tolerate the noise pollution
For this reason, the defendants had to tolerate the (increased) noise pollution reasonably.
There was no justifiable reason for the appellate court’s assumption that the agreed rent should be reduced starting from the seventh month of increased noise pollution. A temporary increase in noise pollution, regardless of its duration, does not constitute a defect justifying a rent reduction under § 536 BGB if it remains within the usual limits for inner-city areas in Berlin, as was the case here.
Source: Federal Court of Justice
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