Wuppertal Regional Court, decision of 29/08/2023 - 8 S 5/23
Landlords and tenants are often involved in disputes over remodelling work in the flat. Tenants should always consult with the landlord when making major alterations. This applies in particular to structural measures that affect the fabric of the flat, namely new doors or windows, wall openings, etc. These also always require the landlord's consent. These also always require the landlord's consent.
If these changes have not been approved by the landlord in advance and the landlord learns of these measures, he can ask the tenant to cancel the conversion. If the tenant refuses, this may result in ordinary or extraordinary termination. In the case discussed here, a tenant with a disability demanded a very costly replacement of his bathtub with a shower.
Facts of the Case:
The physically disabled tenant demanded the installation of a shower
The tenant sues the landlord for permission to install a barrier-free shower in place of the existing bathtub, referring to Section 554 (1) BGB. According to Section 554 BGB, the tenant can demand that the landlord authorises structural alterations to the rental property that are intended for use by people with disabilities, for charging electrically powered vehicles or for burglary protection.
The installation would also have required a not insignificant intrusion into the flat below
The problem was that the installation requested by the tenant also required structural changes in the flat below and would lead to a spatial, visual and probably also acoustic impairment of the flat below. Nevertheless, the tenant sued the landlord for consent to the disabled-friendly conversion of the flat. The local court initially appealed to dismissed the claim. The plaintiff appealed against this decision.
Decision of the Regional Court of Wuppertal
Regional court confirms judgement of the district court
In its appeal judgement, the Regional Court of Wuppertal ruled that the Local Court had come to the unobjectionable conclusion that the plaintiff could not demand the defendant's consent to the installation of a barrier-free shower in place of the existing bathtub.
§ Section 554 BGB does not apply in this case - intervention too far-reaching
Pursuant to Section 554 (1) BGB, the tenant can demand that the landlord allows him to make structural changes to the rental property that serve the use of people with disabilities. As a result, the local court correctly recognised that this provision - irrespective of the consideration to be made in accordance with Section 554 (1) sentence 2 BGB - only covers such structural alterations as are necessary.
Structural changes are not "necessary" within the meaning of the regulation
Necessity means that the tenant can only claim the structural alteration that involves the least interference with the fabric of the building, the interests of the landlord and the other tenants. This factual requirement must be set out and proven by the tenant. As the local court correctly recognised, the plaintiff did not do this.
§ Section 554 (1) sentence 2 BGB also stipulates that the claim does not exist if the landlord cannot reasonably be expected to carry out the structural alteration, even taking into account the interests of the tenant. The provision therefore requires the landlord to weigh up the detrimental consequences of the intended structural alteration against the tenant's interest in carrying out the building work.
If safety is impaired by the structural alteration, a specialist company must be commissioned
If safety issues are affected by the installation (statics, electricity, plumbing), the landlord can demand that the work be carried out by a specialised company
The local court correctly assumed that the installation of the floor-level (barrier-free) shower requested by the plaintiff would not only require the remodelling of the existing bathroom of the flat occupied by the plaintiff, in particular the removal of the existing bathtub, but also a larger hole in the floor ceiling on the one hand and the spatial, visual and probably also acoustic impairment of the bathroom of the flat below the plaintiff's flat on the other. In contrast, the interest of the plaintiff, who had not substantiated that and which less burdensome measures existed, in the installation of the requested shower wall had to take a back seat.
As a result, the district court had rightly rejected the claim and the regional court upheld the decision of the district court.
Source: Wuppertal Regional 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 changes in the subject matter, liability and guarantees are excluded.Important Note: The content of this article has been prepared to the best of our knowledge. However, due to the complexity and constant changes in the legal field, we exclude liability and warranties.
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