Karlsruhe Higher Regional Court, 15.05.2014, Ref.: 12 U 170/13
The landlord is obliged to provide the tenant with the rented property in a condition suitable for use in accordance with the contract and to maintain this condition during the rental period. Contractual use includes, among other things, ensuring that the rented premises are or can be supplied with the necessary media. The landlord must ensure this and provide the necessary supply. If he fails to do so, he may be liable for damages.
Particular problems can arise if a uniform property on which rented rooms are located is divided up and the part with the necessary supply lines is sold. This raises the question for the tenant as to who is now responsible for the supply. For the purchaser, it is questionable whether he must authorise and tolerate the use of the connections located on his property.
In the above-mentioned ruling by the Karlsruhe Higher Regional Court, the court had to decide whether the tenant of commercial premises had a claim for water and electricity supply against the owner of a neighbouring property.
Facts of the Court Case
Landlord cuts commercial tenant's electricity and water connections
The plaintiff in the injunction took action against the defendant in the injunction proceedings to secure the water and electricity supply to the commercial premises rented by the plaintiff in the injunction.
The plaintiff in the injunction was the tenant of the commercial premises on the basis of a rental agreement dated 13 October 2011, in which its production rooms for meat processing and its offices were located.
The defendant in the injunction was the owner of the neighbouring property. Before the sale to the defendant, the two properties formed a single unit and therefore did not have an independent supply of gas, water and electricity.
Rather, the supply was guaranteed via the property of the defendant, over which the supply lines ran. The main connections for the supply of electricity and water to the rented premises were located in the building on the property of the defendant.
In the notarised purchase agreement between the property owner and the defendant, it was agreed that the seller was obligated, to supply the unsold remaining property with gas and water from 1 July 2013 via its own connections, which the seller had to install at its own expense.
Following failed negotiations regarding the acquisition of further partial areas by the defendant in the injunction, the latter announced the cessation of supply as of 2 September 2013. The power supply was interrupted for a period of 2 hours on 3 September 2013.
Interruption to the water supply results in an interruption to the tenant's production
An interruption of the water supply resulted in an interruption of production at the plaintiff, as production was not possible without water due to the necessary hygiene measures. A shutdown of the power supply - not only for a short time - leads to the unusability of the meat stored in the plaintiff's cold storage rooms.
As part of the interim legal protection, an order was issued on 3 September 2013 to restore the water supply to the commercial premises. The defendant was also prohibited from interfering with the water and electricity supply to the premises in dispute.
The injunction initially ordered was cancelled by the regional court
In response to the defendant's objection, the Regional Court revoked the preliminary injunction of 3 September 2013 and dismissed the application for a preliminary injunction.
Tenant then appeals to the Karlsruhe Higher Regional Court
The plaintiff in the injunction appealed against this to the Karlsruhe Higher Regional Court, with which it continued to pursue its claim at first instance.
Decision of the Higher Regional Court of Karlsruhe
The Karlsruhe Higher Regional Court has now confirmed the decision of the lower court. The Regional Court was right to assume that the plaintiff in the injunction was not entitled to a claim against the defendant in the injunction to maintain the existing water and electricity supply to the commercial premises rented by the plaintiff in the injunction.
Contrary to the opinion of the plaintiff in the injunction, a claim for an injunction does not arise from §§ 535 para. 1, 566 para. 1, 578 para. 2 sentence 1 BGB. No rental agreement had been concluded with the defendant. The sale of a partial area to the latter did not lead to his entry into the tenancy. Only a part of the property had been sold on which the rented premises were not located.
It could be left open whether the defendant intended to acquire the additional partial area. Even if this were the case, this would not lead to an obligation on the part of the defendant to guarantee the supply of electricity and water to the commercial premises at the present time.
The contractual agreements between the sellers and the defendant in the injunction regarding the change in supply had not been made to the detriment of the plaintiff in the injunction and had not led to a circumvention of the principle "purchase does not cancel rent". There was no legally unauthorised contract to the detriment of third parties. This could only be assumed if the agreement concluded between the defendant in the injunction and the sellers was intended to create legal obligations for the plaintiff in the injunction. However, this is not the case here. Rather, only an obligation of the sellers is established in this respect. Contractual rights of use of the injunction plaintiff in relation to the affected supply lines were also not restricted by the agreement.
There is also no claim under Section 862 (1) of the German Civil Code to refrain from interfering with the current supply of water and electricity. The interruption of the supply of electricity and water does not constitute a disturbance of possession because the supply of electricity and water required for the use of the rented property is not part of the possession. This only included the existence of actual control of the property. The supply of utilities is not part of the actual control of the property as such, but leads to an extension of the possibility of use that lies in the mere possession.
One of the reasons for the failure of the claim for disposition is that there was enough time to provide for oneself
The asserted claim also does not arise from the agreements made between the defendant and the former property owners in connection with the sale of the property. In the notarised contract, the maintenance of the existing supply was only agreed until 30 June 2013 and it was expressly agreed that the sellers would have to guarantee the supply of the unsold "remaining property" via their own connections from 1 July 2013. It could be left open whether the plaintiff in the injunction, as a third party not involved in the contractual agreement, could derive any claims at all from this agreement - in accordance with the principles of the contract in favour of third parties (Section 328 BGB).
The plaintiff would also not be entitled to an injunction in accordance with Section 1004 para. 1 sentence 2 BGB from the point of view of the right to an established and practised business. It is true that § 1004 para. 1 sentence 2 BGB - beyond its wording - applies to all absolute rights accordingly and thus also to the right to an established and exercised commercial enterprise. In any case, the plaintiff in the injunction is obliged to tolerate in accordance with Section 1004 (2) BGB, as the defendant in the injunction is not obliged to continue to guarantee the supply of electricity and water to the commercial premises via the defendant in the injunction's connection lines.
Failure to provide care is also not a criminal offence
Contrary to the opinion of the plaintiff in the injunction, a claim for an injunction also does not arise from Section 823 (1), (2) BGB in conjunction with Section 240 StGB or Section 826 BGB with regard to attempted coercion or intentional immoral damage asserted by the plaintiff in the injunction. From the outset, conduct falling under § 240 StGB or § 826 BGB - through the future cessation of the supply of electricity or water - could only be assumed if the defendant in the injunction proceedings wanted to continue to achieve the conclusion of a rental agreement in this way by exploiting his strong position due to his ability to dispose of the supply lines. It was undisputed that the negotiations on the conclusion of a new lease agreement had failed. The defendant did not claim that the defendant wanted to induce the plaintiff to conclude a contract by interrupting the supply.
Source: Karlsruhe Higher Regional Court
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