Hamburg Local Court, 20/08/2014, Ref.: 49 C 174/13
The living space specification constitutes a quality agreement in the tenancy agreement. In this way, the target quality owed by the landlord is determined in accordance with Section 535 I 2 BGB.
In its case law, the BGH assumes that if the agreed living space is undercut by more than 10 %, a significant impairment of the use of the rented property is irrefutably presumed, so that a material defect within the meaning of Section 536 I BGB exists.
The Ordinance on Housing Calculations under the Second Housing Act (Zweite Berechnungsverordnung - II. BV) is an ordinance for determining the agreed living space. § Section 42 stipulates that if the living space has been calculated in accordance with this ordinance up to 31 December 2003, this calculation remains valid. However, if structural changes are made to the living space in these cases after 31 December 2003 that make it necessary to recalculate the living space, the provisions of the Living Space Ordinance of 25 November 2003 (BGBl. I p. 2346) shall apply.
In addition, DIN 283 and DIN 277 were primarily used to calculate the living space. There are differences between these calculation methods, particularly with regard to the inclusion of so-called open spaces such as balconies and terraces. As a rule, these can be counted as a quarter and, with justification, up to half, but according to the Second Calculation Ordinance, half.
The Hamburg District Court had to decide which principles were to be used to calculate the living space in the following case. It stated that the existing local custom was the only decisive factor in determining the customary local calculation method. Such a custom was lacking if a calculation of living space according to DIN 283, which was cancelled without replacement in 1983, was not unusual when the rental agreement was concluded. However, a customary practice would only be assumed if, for example, the calculation of living space according to the rent index had been based on DIN 283 when the tenancy agreement was concluded.
Case Facts
In this case, the plaintiffs demanded a repayment of rent due to a discrepancy in the floor space of their flat in Hamburg, which they had rented since 1978. The rental agreement stated a living space of 123.95 m², while the plaintiffs claimed that the actual living space was only 111.2 m². They claimed a rent reduction of €8,440.82 based on the difference between the contractually agreed and the actual area. In addition, they claimed that the balcony should only be counted as a quarter of the living space. The defendant, a partner in the community of owners, disputed these claims and argued that the living space was 112.10 m², which did not constitute a defect relevant to a reduction in rent.
Legal basis
The action was based on Section 536 (1) sentence 1 BGB, which establishes a defect in the rented property if the actual living space deviates by more than 10 % from the contractually agreed area. In this case, there would have been a defect if the actual living space had been less than 111.56 m². The court examined the calculation of the living space and, in particular, how the balcony area should be counted. The plaintiffs demanded that the balcony be deducted to a lesser extent, while the defendant defended the deduction of half.
Expertise and calculation of living space
An expert opinion showed that the living space was 111.27 m², with the balcony being counted as one quarter. However, as no deviating customary practice for calculating the living space was established, the court ruled that half of the balcony should be included. This resulted in a living area of 111.91 m², meaning that the deviation from the contractually agreed area was less than 10 % and therefore did not constitute a defect.
Relevance of customary practice
The court found that there was no deviating custom in Hamburg for calculating the living space that would have justified a quarter of the balcony being taken into account. The calculation according to §§ 42 to 44 II. BV, which counts the balcony as half. A calculation according to DIN 283 was not customary in the area, so that this method was not applicable.
Judgement of the local court
The Hamburg Local Court dismissed the claim. As the actual living space did not deviate by more than 10 % from the area specified in the rental agreement and no deviating calculation method was agreed, there was no defect in the rental property. The plaintiffs were therefore not entitled to repayment of the rent. The court considered a further expert opinion to be unnecessary.
Source: Hamburg Local Court
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