Berlin Regional Court, 13.01.2015, Ref.: 63 S 133/14
Even the modernisation of a rented flat that is currently let cannot be carried out by the landlord without further ado, but must comply with certain forms and deadlines.
In accordance with Section 555c (2) BGB, the landlord should inform the tenant in the modernisation notification in particular of the form and deadline for the objection to hardship in accordance with Section 555d (3) sentence 1.
If the landlord has not referred to the form and deadline for the objection to hardship in the notice of modernisation (Section 555c (2)), the tenant's notification does not require the form and deadline specified therein.
In the Berlin Regional Court case discussed here, the court had to decide whether the tenant's objection of hardship was time-barred due to the lapse of time, although the landlord had described the reference to the form and deadline of the objection of hardship somewhat confusingly.
Facts of the Case The plaintiff was the landlord and the defendants were tenants of a rented flat. The plaintiff wanted to modernise the rented flat occupied by the defendants, but as the defendants refused, the plaintiff claimed against the defendants for toleration of modernisation measures.
The local court initially seised dismissed the action on the grounds that the defendants were not obliged to tolerate the modernisation because the measures would represent an unjustifiable hardship for defendant 2). Contrary to the plaintiff's view, the hardship objection raised by the defendants was also not time-barred because the notice of modernisation did not contain sufficient information in accordance with Section 555c (2) BGB.
The plaintiff appealed against this judgement to the Regional Court, arguing in particular that the Local Court had wrongly assumed that she had not made sufficient reference to the time limit for the hardship objection.
Berlin Regional Court: The Berlin Regional Court has now ruled that the appeal is admissible but unfounded.
The plaintiff could not demand that the defendants tolerate the disputed measures in accordance with Section 555d (1) BGB.
Such an obligation to tolerate on the part of the defendant would not exist, irrespective of whether the tenancy had been terminated in the meantime by one of the notices of termination declared by the plaintiff, in any case because the modernisation measure would mean hardship for the defendant 2), which could not be justified even when taking into account the legitimate interests of both the plaintiff and the other tenants in the building as well as energy saving and climate protection concerns.
It was to be assumed that the defendant was suffering from pancreatic cancer and that the implementation of the measures in question would seriously jeopardise his state of health.
For the reasons correctly explained by the Local Court, no interests of the plaintiff, the other tenants, climate protection or energy saving would justify a serious threat to the health of the defendant 2).
The plaintiff also argued without success that the defendant's objection of hardship was time-barred because it had not been raised by the end of the month following receipt of the notice of modernisation.
The deadline in question does not apply if the landlord did not refer to it in the modernisation notice or did not refer to it properly. This was to be assumed here with the local court. The plaintiff had to admit that the law did not expressly require the notice to be emphasised in print. In contrast to Section 360 (1) sentence 1 BGB, for example, Section 555c (2) BGB does not stipulate that the notice must be clearly emphasised. However, it would contradict the meaning and purpose of the provision of Section 555c (2) BGB if the notice contained confusing or distracting additions. This is the case here.
The plaintiff had not limited itself to informing the defendants of the form and deadline of the hardship objection. Rather, it had asked the defendants to observe the "statutory provisions on modernisation measures, their announcement, their toleration obligations, exceptions to the toleration obligations, exceptions to the exceptions to the toleration obligations, statutory deadlines, special right of termination due to modernisation measures, rent increase and special right of termination due to the modernisation-related rent increase", and then simply reproduced the aforementioned wording of sections 555b to 555f, 559, 561 BGB.
The plaintiff would also be unsuccessful in arguing that the defendant himself had knowledge of tenancy law and therefore did not need to be informed. The notice pursuant to § 555c is also not dispensable if the modernisation notice is given to a legally qualified person. Statutory duties to inform and instruct would normally apply regardless of the addressee's need for instruction.
Source: Berlin Regional Court
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