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Housing defects –
The most important landmark judgments of the Federal Court of Justice
Tenants' rights
If the apartment is actually more than 10 percent smaller than stated in the rental agreement, the tenant can reduce the rent, terminate without notice and/or demand repayment of rent paid in excess (BGH VIII ZR 142/08).
Reduction amount
The rent reduction is justified according to the percentage deviation in area (BGH VIII ZR 295/03).
Apartment size
An apartment deficiency exists if the actual apartment size is more than ten percent less than the area specified in the rental agreement. Tenants are entitled to reduce the contractually owed rent and to demand repayment of the rent paid in excess in the past (BGH VIII ZR 133/03).
Calculation basis
The calculation of the living space is based on the Second Calculation Ordinance for contracts concluded up to 31.12.2003 or on the Living Space Ordinance for contracts concluded since 1.1.2004, unless the tenant and landlord have expressly agreed otherwise in the tenancy agreement or a different method of calculation is customary locally (BGH VIII ZR 86/08).
Rent reduction
When calculating a rent reduction, the agreed gross rent must be used as a basis. This is the basic rent plus advance payments for operating and heating costs (BGH VIII ZR 225/03 and 347/04).).
Rent reduction and operating costs
The basis for the rent reduction is the gross rent, including the operating costs. The consequence of this is that any subsequent payment claim by the landlord from the annual statement of operating costs can be reduced proportionately (BGH VIII ZR 223/10).
Old defects
The tenant does not automatically lose his right to reduce the rent six months after the defect has occurred, even if he has continued to pay the rent without complaint during this period or if he only informs his landlord after six months that there is a defect (BGH VIII ZR 274/02).
Additional claims
In particular, if the landlord has repeatedly objected to the tenant's rent reduction and the tenant has made it clear that he does not accept it, he can demand additional rent even after 27 months (BGH VIII ZR 171/03).
Minimum standard
Even an old apartment that has not been modernized must meet a minimum standard that enables contemporary living. This includes the fact that a larger household appliance, such as a washing machine or dishwasher, and other typical household electrical appliances, such as a vacuum cleaner, can be used at the same time (BGH VIII ZR 281/03).
Electrical supply
Even tenants of an old apartment that has not been modernized are entitled to an electrical supply that ensures that several household appliances can be used at the same time, e.g. washing machine and vacuum cleaner. Restrictions in the tenancy agreement are inadmissible (BGH VIII ZR 343/08).
Mobile radio
The electronic fields emitted by a mobile radio system must be tolerated and are not a defect as long as the limits of the 26th Federal Immission Control Ordinance are complied with (BGH V ZR 217/03).
Electricity cut-off
If the electricity supplier has cut off the electricity supply due to the tenant's payment arrears and removed the electricity meter, the tenant cannot reduce the rent vis-à-vis the landlord with the argument that the usability of the apartment is restricted. In this case, the defect is attributable to the tenant (BGH VIII ZR 113/10).
Fogging
If black discoloration (fogging) occurs during normal use of the apartment, the tenant is not responsible for this defect. The landlord is obliged to remedy the defect (BGH VIII ZR 271/07).
Compensation for Fogging
The tenant can only claim compensation for fogging if he can prove that the landlord is at fault. If the cause of the fogging comes from the landlord's sphere of control, the landlord is obliged to provide evidence (BGH VIII ZR 223/04).
Impact sound
Tenants are not entitled to a rent reduction due to defects in impact sound insulation if the applicable DIN regulations have been complied with. The DIN regulations in force at the time the house was built are decisive. They determine the requirements for the standard of living that tenants can expect, at least as long as nothing else has been expressly agreed in the rental agreement (BGH VIII ZR 85/09).
Sound insulation when adding a storey to a house
In principle, the technical standards that applied at the time the building was constructed must be complied with. If an additional storey is added to the house decades later, the currently applicable DIN standard must be complied with (BGH VIII ZR 355/03).
Sound insulation
There is no defect if the impact sound insulation complies with the DIN standard applicable at the time the building was constructed. This also applies if the floor covering in the apartment above is replaced during the rental period and the sound insulation deteriorates as a result (BGH VIII ZR 131/08).
Burden of proof
The landlord must prove that the causes of the defect do not originate from his area of obligation and responsibility, but from the tenant's area of control and care. If he succeeds in proving this, the tenant must prove that he is not responsible for the defect (BGH XII ZR 272/97).
Documentary proceedings
The landlord is entitled to sue for rent payments by way of documentary proceedings. To do so, he can rely on the rental agreement, the apartment handover protocol and bank statements, which show that the rent was initially paid without reduction (BGH VIII ZR 266/08 and BGH VIII ZR 216/04).
No documentary proceedings
Rent arrears as a result of rent reductions cannot be enforced by the landlord in documentary proceedings if the tenant proves that defects existed on the basis of an apartment handover protocol or a landlord's letter with a promise to rectify defects (BGH VIII ZR 111/09).
Change of ownership
If the landlord is in default of remedying the defect in the apartment and sells the house or apartment, the default situation continues to apply to the new landlord (BGH VIII ZR 22/04).
Compensation
If the tenant places repair orders independently, he cannot demand reimbursement of costs from his landlord. One of the prerequisites for this would be that the landlord had been requested and reminded in advance to have the repairs or defects rectified in the apartment (BGH VIII ZR 222/06).
Sacrificial limit
If the single-family home has a market value of around 28,000 euros, the tenant cannot demand the removal of defects that would cost between 47,500 and 95,000 euros. In this case, the sacrifice or reasonableness limit for the landlord is exceeded (BGH VIII ZR 131/09).
Right of retention
The tenant can only withhold part of the rent after he has notified his landlord of the housing defect (BGH VIII ZR 330/09).
Termination without notice
Termination without notice by the tenant due to significant health hazards - in this case mold infestation - generally requires that the tenant has set a reasonable deadline for remedial action or has warned the landlord in this respect. This is not the case, for example, if the warning is obviously unsuccessful (BGH VIII ZR 182/06).
Limitation period
Tenants' claims Tenants' claims for the rectification of defects are not subject to a limitation period, decided the Federal Court of Justice (BGH VIII ZR 104/09). The judges in Karlsruhe declared that a tenant's claim to rectification of defects is a “claim for performance aimed at permanent performance that is not time-barred”.
Termination
If the reduced amounts amount to more than two months' rent, the tenant is threatened with termination if he is guilty of intent or negligence with regard to the payment arrears.
Vacation apartment
Letting a rented apartment as a vacation apartment to tourists does not automatically constitute a housing shortage if there is a possible nuisance due to noise and dirt.