Bonn Regional Court, judgement of 27.05.2021, ref.: 6 S 154/20
This ruling by the Regional Court of Bonn deals with the formal requirements for a rent increase due to the implementation of modernisation measures.
Facts of the Case:
Landlord announces modernisation work
In the legal dispute decided here, the landlord wanted to carry out modernisation work on the flat occupied by the tenant. The plaintiff received a letter announcing the building work. The modernisation work included thermally insulated plastic windows in the stairwells and flats, an aluminium front door with thermal insulation glazing and a DIN-compliant letterbox system.
There is a rent increase after modernisation
When the modernisation measures were complete, the plaintiff received a letter announcing a future rent increase. The announced rent increase amounted to an increase of one third of the previous basic rent. The reason given for this increase was the modernisation work. The letter also included a description of the costs incurred for the modernisation work and an explanation of maintenance as well as a calculation of the future energy savings resulting from the work carried out. An offer from a company for the façade maintenance of the rental property was also enclosed.
Tenant files declaratory action for ineffectiveness of rent increase
The plaintiffs then filed an action for a declaratory judgement with the Bonn District Court that the rent increase was invalid. The defendant landlord in turn brought an action for payment.
According to the plaintiffs, the rent increase letter was formally ineffective as it contained inaccurate information within the cost presentation of the thermal insulation item. Under this item, more precise details such as the construction of the scaffolding, removal of the old plaster etc. would have been necessary. In addition, the plaintiffs were entitled to receive the original invoices.
Local court rules in favour of tenant, landlord appeals
The Bonn Local Court upheld the claim and rejected the landlord's application for payment. The landlord then lodged an appeal against the judgement. The landlord appeals against the judgement.
Judgement of the Regional Court of Bonn
The Bonn Regional Court has now ruled that the defendant's appeal is admissible and well-founded.
According to the Bonn Regional Court, the plaintiff could not demand a declaration that the defendant was not entitled to payment of the rent increase. The rent increase in dispute was formally and materially effective in the present case. The district court was wrong in its opinion that the claim was justified because the breakdown of the work by trade was missing.
Bonn District Court considers the formal requirements for a rent increase to be met
The landlord has a duty to the tenant to only explain in the rent increase declaration how the measures can increase and improve the utility value of the rented property and lead to sustainable savings in terms of energy and water consumption. Due to the rapid effectiveness of a rent increase, the declaration obligation is intended to prevent unreasonable disadvantages for the tenant by making it possible for this rent increase to be reviewed, including by expert appraisers. Therefore, no excessive requirements should be placed on the formal effectiveness of the rent increase request. It is sufficient if the tenant can plausibly understand the reason for the rent increase. Particularly in the case of construction measures, it is sufficient if the landlord describes the measures carried out in sufficient detail so that the tenant can recognise the necessity for the rental property.
Description of measures to save heating energy
For structural measures to save heating energy, it follows that the landlord must set out in the declaration of rent increase, in addition to a keyword-like description of the measure and an allocation to the items of the calculation, those facts on the basis of which it can be roughly assessed whether the structural change will result in a sustainable saving of heating energy.
The letter announcing the construction measures in this case contained precise lists of the work in order to illustrate to the tenant what subsequent energy savings the measures would entail. Therefore, in the opinion of the court, this list was sufficient for the tenant. The comprehensibility of the reason for the rent increase as part of the tenant's plausibility check was irrelevant. In addition, the declaration of modernisation rent increase must also state the extent to which the measures carried out have saved maintenance costs due. In the present case, this was also stated in the letter.
The burden of presentation and proof for the material justification of the rent increase request lies with the landlord
In the substantive justification, the landlord bears the burden of presentation and proof with regard to the existence of the conditions for a rent increase. Accordingly, it is particularly important to prove that modernisation and not pure maintenance measures are involved, as in the present case. According to the case law of the Federal Court of Justice, the meaning and purpose of the provisions on modernisation and subsequent rent increases would not only require a deduction of the maintenance portion in the event that the landlord saves on maintenance measures that are already "due" as a result of the modernisation or that such measures are also carried out on the occasion of the modernisation, but also in the case of the modernisation renewal of components and facilities that have already been used over a not insignificant period of their useful life, so that the landlord saves on maintenance costs to a considerable extent as a result of the modernisation. The defendant had fulfilled this obligation to provide evidence and the plaintiff had not raised any substantive objections in court.
However, insofar as the plaintiffs can invoke a claim to receive copies of the original invoices, this would not preclude the landlord's (defendant's) claim to a rent increase.
As a result, the landlord has a claim against the tenant for payment of the rent increase.
An appeal was allowed on the decisive question of whether a subdivision of the construction measure into individual so-called "trades" was necessary for the formal effectiveness of a modernisation increase, as no supreme court decision had yet been made on this issue.
Source: Bonn Regional Court
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