Federal Court of Justice, 3 November 2010, Ref.: VIII ZR 330/09
In principle, a tenant can reduce the rent in accordance with Section 536 BGB due to external or other influences. These effects constitute a defect if they are not contractually stipulated, regardless of whether they must be tolerated by the landlord as the owner. However, in accordance with Section 536c (1) BGB, the tenant must notify the landlord of any defects that occur or are present.
FactsThe defendants were tenants of a flat owned by the plaintiff and paid no rent at all for several months in 2007 and only a partial amount for one month in 2007. The plaintiff (landlord) then declared the termination of the tenancy without notice due to late payment. The defendants then asserted their right to withhold rent due to mould infestation and objected to the termination. The defendant then filed an action for eviction with the local court. The local court upheld the action for eviction. The district court amended the judgement of the court of first instance and dismissed the action for eviction on the grounds that the tenants were not in default with the payment of rent because they were entitled to have this defect remedied despite the failure to report the mould infestation.
BGHThe plaintiff's appeal against this decision has now been successful and thus leads to the restoration of the first-instance eviction judgement. The BGH is of the opinion that the defendant has no right to withhold rent payments due to mould infestation. The right of retention under Section 320 BGB serves to put pressure on the debtor (the landlord) to remedy the defect. This objective cannot be achieved if the landlord is unaware of the defect and therefore there is no right of retention.
Source: Federal Court of Justice
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