Regional Court Saarbrücken, 01.03.2013, Ref.: 10 S 170/12
At the landlord's request, the tenant must in principle remove fixtures, fittings, extensions and alterations to the rented property and restore the rented property to its contractual condition.
This also applies if the landlord agrees to the implementation of such measures and has given this consent in writing and verbally to the tenant. This is because the tenant cannot assume that the landlord has waived his right to restore the property to its original condition on the basis of this consent. However, there are exceptions to this principle of the obligation to restore:
An exception is made, for example, if the tenant only creates the contractual condition owed by the landlord through his construction work.
A further exception applies if the parties agree to carry out measures and the landlord does not declare any reservation regarding the restoration of the old condition.
An exception to the obligation to dismantle is also made if the construction measures represent a permanent improvement in value that extends beyond the tenancy and this can only be removed again at considerable cost and the rented property is in a worse condition after removal than before.
In the Saarbrücken Regional Court case discussed here, the court had to decide on a tenant's obligation to remove fixtures for which the landlord had given his consent.
Facts of the Case:
The plaintiff had rented a house to the defendant under a rental agreement dated 1 October 2006. In the kitchen, a PVC floor or PVC covering was installed both on the floor and on the wall as a splash guard.
Tenant tiles the floor and installs backsplash - landlord demands compensation
With the plaintiff's consent, the defendant removed the PVC flooring and covering and installed tiles on the floor and a tiled splashback on the wall. When the defendant moved out in 2011, the tiles were no longer undamaged, so the plaintiff claimed damages for the failure to remove them.
Local court initially called upon does not consider tiles to be furnishings and criticises the setting of a deadline
The district court initially seised dismissed the action on the grounds that the tiles had not been agreed. Admittedly, it had not been agreed that the tiles would be taken over and, in the absence of reimbursement of costs, this would not result from the plaintiff's authorisation to install them. The tiles were also not "fixtures and fittings" within the meaning of Section 539 (2) BGB. However, a claim for damages under Section 281 BGB due to the lack of dismantling would fail because the plaintiff had not set a deadline for the defendants and setting a deadline was not dispensable. The plaintiff then appealed against the dismissive judgement to the Saarbrücken Regional Court. In the appeal, the plaintiff argued that the defendant had refused to make any payment for the removal of the tiles and had moved out without leaving an address, which is why it was not possible to set a deadline.
In addition, he had rejected the claims for damages in a written statement by a lawyer, so that there was a "refusal of fulfilment".
Judgement of the Regional Court of Saarbrücken:
The Regional Court followed the opinion of the Local Court and also ruled that the plaintiff was not entitled to damages.
Despite the fundamental obligation to remove, the Court of Appeal also sees no claim for removal or damages
According to § 546 BGB, the tenant is generally obliged to remove fixtures and fittings without it being relevant whether these objects have become essential components of the rented building through the installation (§§ 94, 946 BGB) and without it being relevant whether the landlord has agreed to the installation or not, so that the landlord could certainly be entitled to claims for damages under §§ 280, 281 BGB if the obligation to dismantle is violated.
Failure to set a deadline is detrimental to the claim for damages in this case
However, the requirements for a claim for damages pursuant to Sections 280, 281 BGB are not met. According to § 281 para. 1 sentence 1, the creditor can only claim damages from the debtor, who has not provided a due service or has not provided it as owed, if he has unsuccessfully set the debtor a reasonable deadline for performance or subsequent fulfilment. It is undisputed that the plaintiff did not set the defendant a deadline for subsequent fulfilment in the present case.
The setting of a deadline is also not dispensable here because the debtor has seriously and definitively refused performance or because special circumstances exist that would justify the immediate assertion of the claim for damages after weighing up the interests of both parties (Section 281 (2) BGB).
There is also no serious and final refusal to perform
Even in the appeal instance, the plaintiff had not even begun to demonstrate a serious and final refusal to pay. It is irrelevant whether the defendant "refused any payment for the removal of the tiles" when moving out, as the grounds of appeal claim. The plaintiff would fail to recognise that the performance owed by the defendant would not lie in the payment of the costs for the removal, but in the removal itself. A refusal to assume the costs would therefore by no means constitute a refusal of performance. Nothing else would apply if the plaintiff were to rely on the fact that the defendant had rejected claims for damages in full in a legal brief dated 30 November 2011.
Source: Saabrücken Regional Court
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