AG Berlin-Mitte, judgement of 07.02.2022, ref.: 20 C 206/21
In matters of tenancy law, the tenant not only has the right to reduce the rent in the event of rental defects, but can also assert claims for damages against the landlord in certain cases. This is the case, for example, if the landlord feigns personal use, the landlord does not fulfil his inspection obligations or simply disposes of the tenant's belongings. In the case discussed here, the landlord had an external company, which in turn had been commissioned by the landlord's property management company, dispose of a high-quality bicycle belonging to the tenant.
Facts of the Case:
The defendant was the landlord and the plaintiff was the tenant. The defendant had rented the tenant a flat in the front building in Berlin. At the beginning of 2018, the property management company commissioned by the defendant announced that unlabelled bicycles parked in the courtyard of the building were to be removed on 1 March 2018.
Third-party company disposes of bicycle, tenant files criminal complaint
In an email dated 21 March 2018, the property management company commissioned a third-party company to dispose of the bicycles, which then disposed of them. On 30 March 2018, the plaintiff filed a criminal complaint because his bicycle had been stolen from the yard. In a letter dated 6 April 2018, the plaintiff demanded that the defendant pay EUR 1,016.00 by 30 April 2018 for the removal of his bicycle from the backyard, to no avail.
The plaintiff claims that approximately 3 weeks after 1 March 2018, he removed the lettering from his bicycle, which he had purchased in the summer of 2016 for EUR 1,060.00, as evidenced by the invoice and payment receipt. On 29 March 2018, his locked bicycle, which had been parked in the courtyard, was then removed without warning by the company commissioned by the defendant, as were various other bicycles. There were eyewitnesses to this. At the same time as his bicycle, its accessories (folding lock, Shimano click pedals, iPhone holder, handlebar bag holder, bottle holder, ergotec grips, spring flap) were stolen. He had paid approx. 210.00 euros for these accessories. Taking into account a deduction "new for old" of 20 %, he had suffered damages in the amount of the claim.
Tenant asserts claim for damages under civil law
The defendant in turn denies with ignorance that the plaintiff is the owner of the bicycle and that this bicycle was removed by the company commissioned by the defendant on 29 March 2018. The defendant denies with ignorance that the plaintiff was still using the bicycle in March 2018 and had parked it in the yard. The defendant denies with ignorance that the bicycle, including accessories, had a total value of EUR 1,270.00 as the purchase price.
The defendant claims that neither he nor his property manager disposed of bicycles at the time in question, but the company did. Because it was allegedly a very high-quality bicycle, its disposal by the latter company did not seem plausible. Unfortunately, it was not unusual for bicycles to be stolen from the property in question by any third party.
Judgement of the Berlin Mitte Local Court
The Berlin Mitte Local Court has now ruled that the plaintiff is entitled to the asserted claim for damages due to culpable breach of tenancy agreement protection obligations in accordance with Sections 282, 241 (2) BGB or prohibited personal authority in accordance with Sections 823, 831 BGB in conjunction with Section 858 (1) BGB or due to culpable infringement of the plaintiff's property in accordance with Sections 823 (1), 831 BGB.
Berlin Mitte Local Court sees landlord's liability for damages
The plaintiff had the right of action. The legal presumption from Section 1006 BGB applies in favour of the plaintiff because he did not give up his property by parking his bicycle in the courtyard of the building in dispute. In addition, he had proven his acquisition by means of the submitted invoice and payment receipt dated 15 July 2016 (Section 416 ZPO), so that the plaintiff's denial of legitimacy pursuant to Section 138 ZPO was not relevant to the decision.
The defendant was liable for damages on the merits because the plaintiff's bicycle had been lost as a result of actions initiated by him. It is undisputed that the defendant stated in the statement of defence that the company disposed of bicycles at the time in question. The defendant must accept responsibility for the behaviour of both the property management company and the waste disposal company within the framework of §§ 164, 278, 831 BGB.
Landlord must accept responsibility for the actions of the third-party company
Accordingly, the defendant must be held responsible for the fact that the property management acting on its behalf did not inform the affected tenants in the building despite knowing that the date announced on the notice board on 1 March 2018 had passed unused and that it had requested the commissioned waste disposal company to make up for this in an email dated 21 March 2018. According to the tenancy agreement, the landlord was obliged to inform the tenants by means of a notice similar to the one for 1 March 2018 or by means of individual letters that the disposal of unlabelled bicycles initially announced for 1 March 2018 would be made up for, so that the tenants could have made arrangements. The property management had culpably failed to do so, which the defendant had to accept as a defence. The fact that the defendant had fulfilled his monitoring and control obligations towards the property management was neither presented nor apparent, so that he was not exonerated and there was a culpable breach of secondary obligations of the landlord's duties of consideration, protection and information under the tenancy agreement.
With the unauthorised seizure of the tenant's household effects, including the bicycle parked by the tenant in the courtyard, the landlord is obliged to compensate the tenant for the resulting damage. By taking possession of the tenant's household effects, the landlord also has a duty of care, which would in principle prevent disposal (BGH, judgement of 27 April 1971 - VI ZR 191/69). The landlord has a duty of care within the meaning of Section 241 (2) BGB for the items taken into possession without authorisation. The consequence of this is not only that the landlord must return the items demonstrably taken into care in full and in a condition that is not worse than when they were taken into care. In the event that it is impossible to return the property, the landlord must - as per § 280 (1) sentence 2 BGB, so that the burden of presentation and proof lies with him and not with the tenant (BGH, judgement of 5 October 1989 - III ZR 126/88 -).
Claim for damages exists both on the merits and in terms of amount
The amount of the claim for damages, which was therefore justified on the merits, was also unobjectionable. The court was required to use its discretion to assess whether it was possible to estimate the damage in accordance with Section 287 ZPO and the plaintiff's submission was sufficient as a basis for the estimate. By means of the invoices submitted for the bicycle and its accessories, the plaintiff demonstrates and proves that he incurred total costs of EUR 1,260.00 for their purchase. The defendant does not contest this in a way that is relevant to the decision without any concrete counterstatement regarding other purchase prices for the specifically designated items at the time. The same applies to the discount of 20 % applied by the plaintiff as a deduction "New for old", as it was possible and reasonable for the defendant to provide a substantiated dispute by submitting a different current value on 29 March 2018. In the context of Section 287 ZPO, the required estimate based on the purchase price submitted and substantiated by the plaintiff therefore shows that the damages asserted in the amount of the claim are also to be compensated as causal damage, Section 249 BGB.
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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One Response
Hello,
Thank you for the article.
Is there a sample letter for compensation in such a case that I can use to contact the owner/landlord without a lawyer?