General tips when renting accommodation

94 posts in this topic

Electrical Standards in Rented Property

 

One of the most important questions when moving in: Are there enough electrical outlets, and are the electrical standards themselves sufficient?

 

According to the Bavarian Homeowners Association the standards are considered sufficient if they fulfill the requirements in force at the time of construction. In other words, if your building dates from 1904 chances are that your electrical lines aren't quite up to date with current (pardon the pun) standards.

 

However, this does not mean that you have to choose between making toast, running the washing machine or vacuuming the floors. The Federal Supreme Court has confirmed that tenants of unimproved old buildings have the fundamental claim to running several appliances simultaneously. Any provision in your lease limiting such usage to the building's electrical capacity is invalid, the same applies to any provision obliging the tenant to cover the costs for enhancing the electrical installation.

 

Tenants do not have the right to demand protection circuit facilities; your landlord is not obliged to reimburse you if you have them installed.

 

Your landlord is responsible to uphold the condition of your electrical installation, checks approximately every four years are considered appropriate but there is no legal obligation to have them performed. Ask your landlord for the so-called E-Check confirmation and for proof of repairs and maintenance; he may recharge you for the costs as operational costs (Betriebskosten). It may be wise to agree on sharing the costs for such a check before you move in.

 

You as the tenant are obliged to notify your landlord of any obvious defects or you may be liable for any damage caused by defective cables and circuits!

 

Source: Süddeutsche Zeitung no.58 Friday 11 March 201, page 58

 

And today's handy verdict: If your landlord makes a mistake in your operation costs calculation (Betriebskostenabrechnung) he may correct this mistake within the statute of limitation (twelve months after the end of the relevant period) and demand the missing costs (Federal Supreme Court, file no. VIII ZR 296/09)

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Deposit Cannot Be Used by Tenant for Open Rent

 

Important verdict of the week: The County Court of Berlin as court of appeals has decided that the tenant may not cease rent payment after terminating his lease and before moving out, claiming that the landlord should take the rent out of the deposit (file no. 65 S 139/10).

According to the court, the deposit is meant as the landlord's security for any claims against the tenant. It is not meant as a financial reserve that the tenant may refer the landlord to once the lease is terminated.

 

 

Mieter können ausstehende Mietzahlungen nach einer Kündigung ihrer Wohnung nicht einfach mit ihrer Kaution verrechnen lassen. Denn dabei würde der Sicherungszweck der Kaution leerlaufen.

Im verhandelten Fall wollten Mieter nach ihrer Kündigung die Miete für die letzten zwei Monate mit der Kaution verrechnen lassen. Der Vermieter lehnte das jedoch ab - und zwar zu Recht, wie die Richter entschieden. Denn die Kaution solle nicht den Mieter von Mietzahlungen freistellen, sondern eventuelle Ansprüche des Vermieters gegen den Mieter absichern.

dpa

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Interesting verdict: Rent Reduction Due to Bad Smell

 

If your neighbor creates a stink (not just smells you don't like such as cauliflower or BBQ fish) you can request your landlord to undertake adequate measures to make it stop.

 

If your landlord refuses to do so you may hire an expert to locate and analyze the smell, its effects, its cause and how to remove it; you may also reduce your rent until the premises are once more useable as agreed in the lease.

 

The case: An elderly man owned a dog, this dog would pee in the stairwell. The man also was a messy who hoarded garbage. The combined smells were discernable in the neighboring apartments. In spite of complaints the landlord did nothing against either cause so that tenants of one apartment obtained a private expertise and reduced the rent.

 

The County Court Berlin (65 S 296/10) confirmed their right to take these steps as the smell of decomposing garbage is especially irritating. The landlord refused to remove the cause so that the rent reduction was justified. The costs for the expertise could also be claimed as damages due to the landlord's refusal to admit to any disturbance of the rented object.

 

 

Im verhandelten Fall hatten sich die Mieter einer Wohnung im zweiten Stock wiederholt über ihren Nachbarn aus dem ersten Stockwerk beschwert. Der ältere Mann hatte unter anderem einen Hund, der im Treppenhaus urinierte. In der Wohnung des Mannes lagerte zudem Müll. Der Gestank drang bis in die Nachbarwohnungen. Nachdem sich trotz der Beschwerden an dem Zustand nichts änderte, holten die Mieter aus dem zweiten Stock ein privates Gutachten ein und kürzten die Mietzahlung.

 

Zu Recht, wie die Richter befanden. Der Gestank von sich zersetzendem Müll werde als besonders unangenehm empfunden. Daher sei eine Mietminderung angemessen. Da der Vermieter diesen Mangel nicht unverzüglich beseitigt habe und eine Beeinträchtigung der Wohnung nicht anerkennen wollte, sei es dem Mieter zudem gestattet, ein Gutachten einzuholen. (Az. 65 S 296/10)

Soure: Süddeutsche Zeitung, no.82, Friday 8 April 2011, page 62/dpa

 

There is no mention of cigarette smoke in the verdict but you can possibly refer to this decision if your neighbor's smoke wafts into your apartment e.g. via the airducts, or possibly from the balcony through an open door.

 

Try speaking nicely to the neighbor first, though.

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Subleasing part of the apartment – going for it without permission?

 

The reasons can be manifold why a tenant, some time into the lease, may be forced by to sublease part of his rented apartment. As innocuous as it sounds, this desire, if put into action without prior permission, can lead to an unexpected termination by the landlord.

 

First of all, the permission to sublease can be contained in the lease agreement. Often, though, the lease agreement prohibits the tenant from doing so. In this case the tenant has to assert his right to sublease as laid down in the Civil Code (BGB). The law gives the tenant an enforceable claim to obtain the permission to sublease from the landlord. Basic requirement is that the legitimate reason or necessity for subleasing (child leaves home, death of a family member, divorce, loss of income, etc) arose after the parties entered into the lease contract. Next, the tenant has to specify in name to the landlord the exact person whom he has chosen as his lessee. There is no right for getting an unspecific permission to sublease in general. The landlord may even inquire about the profession of the designated sub-lessee. This all serves to allow the landlord to examine whether the named person gives rise to concrete grounds for disapproval. Failing that, the landlord is obligated to grant the permission.

 

Now, this formal procedure – asking for permission, naming the person, waiting for the permission – has to be observed at all cost to avoid handing to the landlord a pretext to terminate the lease contract with the tenant should he come to know that his tenant acted unilaterally in going ahead with the sublease. This is especially relevant where the landlord-tenant relationship is already strained.

 

At the same time, what if the landlord stalls after the tenant properly asked for permission and the tenant, exasperated and desperate, goes ahead without the permission? The Federal Civil Court (BGH) recently had to rule on such a case (BGH, v. 2.2.2011, VIII ZR 74/10) where, following the tenant’s unilateral action, the landlord terminated the lease. The Court stated that the tenant violated his contract notwithstanding that he may eventually have a claim against the landlord to be granted that permission. The validity of the termination, however, is dependent on a “substantial” breach of the contract on the part of the tenant. Here, the Court questioned whether the breach met this benchmark with view to circumstances of the case. Without deciding on the severity of the breach, the Court regarded the particular conduct of the landlord as contradictory. The landlord, after being furnished with all the necessary information about the new tenant, has to swiftly make a decision and cannot simply stall and drag his feet. As the landlord would have to give the permission had he acted on his obligation to make a timely decision, the Court denied the validity of the termination.

This all goes to show that the tenant is well advised not to take chances relying on case specific circumstances but rather follow the procedure as outlined and ask for specific permission to sublease part of his apartment. The landlord is obligated to answer this request with no undue deferment. Should the landlord unlawfully refuse permission, the tenant will have to pursue his claim in court and might also sue the landlord for ensuing damages. The tenant may respond differently, too. If the landlord unlawfully rejects the permission, the law gives the tenant a special right to terminate the contract himself. This has led some tenants who were bound by long contracts to resort to a ploy or, differently put, take the refusal as a vehicle to get out of an unwanted contract: They would simply pretend they had a potential subtenant waiting in the wings hoping that the landlord would reject their request only to terminate the contract themselves shortly after. Not surprisingly, the Court (BGH, v. 11.11.2009, VIII ZR 294/08) dismissed this scheme, this time denying the validity of the termination of the tenant as he acted in bad faith.

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Hi Sara - thanks for this amazing series :) Any chance of your doing one on Landlords' rights when returning to occupy their rented property (particularly when the lease is not time-bound)?

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Kuzzer, that would require a normal termination for Eigenbedarf within the normal time limit.

 

A whole passle of interesting verdicts today:

 

 

Die Raumtemperatur einer Wohnung sollte nachts nicht unter 18 Grad absinken. Mit dieser Empfehlung des Landgerichts Wuppertal verständigten sich die Beteiligten eines Zivilprozesses um die angemessene Raumtemperatur einer Mietwohnung auf eine außergerichtliche Einigung. Die Richter empfahlen die von dem klagenden Solinger Ehepaar geforderte nächtliche Mindest-Raumtemperatur von 18 Grad als 'Sollmaßstab'. Die Mieter waren vor Gericht gezogen, weil nach ihrer Darstellung die Raumtemperatur der Altbauwohnung in drei Nächten im Januar und Februar dieses Jahres trotz voll aufgedrehter Heizungsventile auf bis zu 14 Grad abgesunken war. Nach Ansicht der Wuppertaler Richter sollten Zentralheizungen trotz der allgemein üblichen nächtlichen Herabsenkung der Betriebstemperatur so eingestellt werden können, dass auch nachts wenigstens 18 Grad für jene Bewohner, die dies wünschten, erreicht werden könnten.

This has been mentioned before: A minimum bedroom temperature of 18°C can be demanded. However:

 

 

Eine höchstrichterliche Entscheidung zu der Frage, wie warm eine Wohnung nachts zu sein hat, gibt es bislang nicht.

There is no Supreme Court decision on which temperature is required by law.

 

 

Wenn Angehörige im Treppenhaus randalieren, müssen Mieter für die entstandenen Schäden geradestehen. Das hat das Amtsgericht München entschieden, berichtet die Zeitschrift Wohnungswirtschaft & Mietrecht. Im verhandelten Fall hatte der Sohn einer Mieterin die Türen von Nachbarwohnungen beschädigt. Der Vermieter wollte daraufhin etwa 550 Euro Schadenersatz von der Frau haben. Dagegen klagte die Mieterin - allerdings ohne Erfolg. Denn die Mieterin sei vertraglich verpflichtet, das Eigentum des Vermieters pfleglich zu behandeln und nicht zu beschädigen, befanden die Richter. Diese Pflicht erstrecke sich auch auf die Angehörigen. (Az. 461 C 32968/09)

Like parents being responsible for their children's actions, a tenant can be held liable for damages caused by his relations. The clause stating that tenants are obliged to use the rented premises with care and to cause no damage includes the tenant's kin.

 

 

Laminat gilt als hochwertig. Eine Mieterhöhung mit Hinweis auf den entsprechenden Bodenbelag ist daher rechtens, entschied das Landgericht Berlin. Im Einzelfall komme es nicht auf die Qualität des tatsächlich verlegten Bodens an, entschieden die Richter. Im verhandelten Fall stritten sich Mieter und Vermieter darüber, um welchen Betrag die Miete angehoben werden sollte. Der Vermieter verwies unter anderem auf den hochwertigen Bodenbelag. Der Mieter jedoch monierte, dass der verlegte Boden keine gute Qualität aufweise und wollte die Mieterhöhung begrenzen. Vor Gericht hatte er damit jedoch keinen Erfolg. (Az. 63 S 241/10)

Laminate flooring is considered an increase in an apartment's value - even if it is of lesser quality. If your landlord installs laminate flooring he is entitled to raise the rent.

 

 

Müssen Mieter beim Auszug ihre Wohnung zu Unrecht renovieren, können sie die Kosten dafür innerhalb von sechs Monaten vom Vermieter zurückverlangen. Danach tritt die Verjährung in Kraft, entschied der Bundesgerichtshof (BGH) nun in Karlsruhe. Hintergrund des Urteils ist, dass einige Mietverträge Renovierungsklauseln enthalten, die rechtlich nicht wirksam sind. Im verhandelten Fall war dies einem Ehepaar aus Freiburg allerdings zu spät aufgefallen. Es brachte die Wohnung vor dem Auszug im Jahr 2006 für knapp 2700 Euro in Schuss. Drei Jahre später erfuhr das Paar, dass die Klausel in ihrem Vertrag unwirksam war und forderte das Geld zurück. Es scheiterte bereits in den Vorinstanzen und jetzt auch vor dem BGH. (Az. VIII ZR 195/10)

Check the provision in your lease regarding renovation on moving out! If it is invalid you do not have to renovate (but your landlord can claim compensation for any damage you leave behind). If you renovate and then realize that you didn't have to the statute of limitations is six months, presumably after the handover date - the article doesn't say.

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Like parents being responsible for their children's actions

 

Parents are not responsible for their children's actions under German law unless negligently disregarding their duty of supervision. That's the main point of the verdict: If the tenant passes usage permission for a property they rent to a person (their kid) they become legally responsible that that person uses the property in accordance with the contractual rules they themselves are under.

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No Keys, No Rent

 

Your obligation as a tenant to pay rent does not begin until you have received the keys to the rented object. Even if your lease states, e.g., "the lease begins on 1 September 2011" and you do not receive the keys until 10 September you do not have to pay rent for 1 through 9 September.

 

This decision is remarkable because of its background: The landlord bought an object and entered a verbal (!) contract with the tenant but did not provide him with the keys until several months later. He still demanded rent from the date of the verbal agreement. The first court decided in his favor (thus confirming the validity of the verbal agreement).

 

However, the Higher Regional Court in Düsseldorf (file no. 10 U 60/10) argued as follows: Regardless whether a valid contract had been entered verbally the obligation to pay rent commences with the tenant's appropriation of the rented object, this generally occurs when the keys are handed over. It is the landlord's obligation to prove such a handover. As this was not the case the landlord's claim was dismissed.

 

What do we learn from this?

 

  1. Courts can recognize verbal rental agreements.
  2. Rent is only due for the period during which you hold the keys to the rented object.
  3. Always have a witness for any legal transaction, e.g. handing over keys.

Of course, it would be interesting to know if you have to pay rent for an apartment if you hand over the keys a week or so before the official termination date. Following the above logic the answer would have to be "no".

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In October in my building some renovation works will start (as decided in some meeting between owners)

As far as I know I, as a tenant, do not have to pay for them, but the landlord will do it, right?

 

Furthermore, on the contract I signed there is something like "rent price can vary due to legal regulamentations"...

 

I hope landlord will not change the rent after these works :rolleyes:

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Thank you, honey!

 

This is a court decision we have all been waiting for, some of us with literally bated breaths.

 

Landlord Cannot Forbid Smoking In Rented Premises

According to a recent court decision (63 S 470/08, Regional Court Berlin) a landlord cannot effectively forbid his tenant to smoke in the rented premises. Smoking is defined as a customary use of the premises, writes the court. In addition, any specific instructions regarding how to air the premises are also invalid.

 

The case is based on a tenant of the neighboring apartment, let's call him Fritz, being bothered by the smoke from next door, where a guy we will name Gustav lives, enough to reduce his rent. Fritz claimed that Gustav's habits caused a massive disturbance in his apartment, especially when Gustav aired his apartment. Fritz demanded his landlord to order Gustav to not smoke in the room abutting the balcony, and to only air at specific times.

 

 

Die Richter wiesen dieses Ansinnen zurück. Vermieter könnten ihren Mietern weder das Rauchen verbieten noch sie zwingen zu bestimmten Zeiten zu lüften, befanden sie. Denn ein solches Verbot stelle einen Eingriff in das allgemeine Persönlichkeitsrecht des Rauchers dar.

The judges denied the claim as such regulations constituted an impermissible infringement of Gustav's personal rights.

 

31.08.2011, 13:25 Uhr | dpa-tmn

 

However: If your own personal Gustav's smoke creeps into your apartment due to defects to the building's substance you may decrease the rent!

 

Mietminderung bei nicht hinreichender Abdichtung der Zwischendecke gegen Tabakrauch

Amtsgericht Münster unter Aktenzeichen 8 C 412/87

 

20 % Mietminderung wegen Zigarettenrauch aus darunter liegender Wohnung

Amtsgericht Braunschweig unter Aktenzeichen 113 C 3869/92

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Of course, it would be interesting to know if you have to pay rent for an apartment if you hand over the keys a week or so before the official termination date. Following the above logic the answer would have to be "no".

 

Something I read en passant last week: If your former landlord - immediately after your moving out - begins to renovate the apartment that you have vacated early he is not entitled to rent for the remaining rental period!

 

That answers this question!

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Adjustment of Running Costs ("Betriebskosten")

Running costs in some parts of Germany already amount to a second lease, meaning that they steadily increase playing catch up to the base lease (“Grundmiete”). In many lease contracts, if not in most, there is a specific clause which states that the tenant has to bear certain running costs in addition to the base lease. Also the clause determines the amount of a monthly down payment. The landlord is supposed to give a calculation of all the running costs and its distribution deducting the total of the down payments at the latest of 12 months after the “fiscal” year ended. If there is no such valid clause, then the landlord has to bear the running costs. It is the same with the “Schönheitsreparaturen” or renovation costs. If the tenant is supposed to bear those costs, a valid special clause to that effect is needed in the contract.

 

Back to the topic of running costs: They are subject to change. The first amount laid down in the contract is not carved into stone. So, if the tenant pays a certain down payment in one year and gets a calculation the next year that ends with a surplus, the tenant can unilaterally determine an adjustment in writing for the future pending the next calculation. He is not supposed to give the landlord an interest free credit.

 

In the opposite scenario where the calculation ends with a deficit on part of the landlord, the landlord can unilaterally adjust the monthly payment upwards. In a fresh court decision the landlord, however, tried more than that. Not only did the landlord adjust the monthly payment upwards but, for good measure, he calculated a “security surcharge” of 10 percent on top of it. The BGH (Federal Civil Court) dismissed that endeavour. The Court pointed out that reference point for an adjustment is the last calculation. Although tendencies could be taken into account, there is no room for an abstract “security surcharge” that is not reflected in an expected concrete rise of singled out running costs.

 

BGH, 28. 9. 2011 – VIII ZR 294/10

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Repeated Late Rent Payment Can Lead to Termination

 

Most of you will have either a standing order for your rent payments, or your house management/landlord does a monthly direct debit. Still, it's a good idea to always check your account to make sure that the rent was paid completely and punctually.

 

The Federal Supreme Court has decided that repeated late rent payments are a grievous breach of the rental contract and justify termination for cause (BGH, VIII ZR 91/10). An error in judgment leading to the assumption that the rent is due e.g. in the middle or at the end of the month cannot heal this breach.

 

Payment is considered late when it is not in the recipient's account by the due date, generally up front for the current month on the third working day of the month. The tenant is in default if the rent is overdue by at least one week. However, the tenant must receive at least one notification of late payment, containing information on the month for which payment was late and the date on which rent for which month and in which amount was received. The notification must also explicitly state that the lease will be terminated if the tenant once more issues a belated payment.

 

Even then, the justification of a termination depends on several factors:

 

 

  • amount of late payments
  • number of late payments
  • by how many days the payments were late
  • reason for belated payment
  • if there were any other causes for complaint against the tenant

 

Generally, five to six late payments within a twelve month period are considered sufficient to justify termination for cause if the delay was caused by the tenant. If, however, the delay was caused by late payment issued e.g. by a Jobcenter (got that, Berliners?) the lease may not be terminated (BGH, VIII ZR 64/09).

 

Even if the tenant has repeatedly paid belatedly the lease may not be terminated if the house management/landlord has accepted belated payments over a considerable stretch of time without demurring and then sends the above notification. If, e.g., the house management/landlord has repeatedly accepted payment by the middle of the month although the rent was due on the third working day, finally sends the notification and then terminates the lease after the next belated payment this termination can be considered invalid (BGH, VIII ZR 191/10).

source: Süddeutsche Zeitung no. 249, Friday 28 October 2011

 

Should you realize that your rent will either be late or incomplete due to either circumstances beyond your command (late payment by the authorities covering your rent) or due to lack of sufficient funds it is highly advisable to contact your house management/landlord and inform them of the fact so that you do not get a black mark against your name and can continue in your apartment without dreading termination and/or eviction.

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Moving & Deposit for the new flat

 

The plan of renting a new apartment and shifting to a new place, especially while still bound to the present apartment’s notice period, is often hampered by one practical problem: The new landlord’s insistence on a deposit. According to the law the landlord’s insistence, however, is capped at a certain amount. The landlord may only ask for a deposit that does not exceed thrice the amount of the rent without running costs and heating charges, i.e. the basic net amount. It is a moot point whether it is conducive to start arguing with the landlord referring to this legal restriction before the actual signing the new contract.

 

After signing the contract with that flawed call for a deposit, there is still no obligation to pay the excess amount. Arguing that the whole passage which contains the inflated amount is invalid - with the result that no deposit is owed at all - might depend on exceptional circumstances in the concrete wording of the clause. More likely that is not the case; especially the BGH is generally restrictive and maintains that the obligation to pay the legally permissible cap of three times the amount of the net lease remains unaffected. In this context let me give another illustration. The landlord asked the tenant to provide a double package of security: On the one hand a deposit of three times the basic rent and, for good measure, a personal security (“Bürgschaft”) of xyz € from the father of the young tenant. The BGH did not reject the security package altogether but rather just declared the excess personal security demand as void.

 

Another preliminary hedge against the landlord’s demand to transfer the deposit is that the tenant is entitled to ask for an insolvency secure bank account. Although the law stipulates that the landlord has to keep the deposit separate from his assets after he receives the said amount, the BGH emphasized that this obligation also has consequences before the actual payment. The tenant is not obliged to transfer the deposit onto an account which eventually does not protect him against a landlord’s possible insolvency (13.10.2010 – V III ZR 98/10).

 

Back to the scenario before: What, then, if unawares of the legal situation the tenant heeded the call to pay a deposit that exceeded the legal cap?

 

In this case the tenant has a claim for unjust enrichment against the landlord. He can ask the landlord to reimburse the excessive amount. One caveat: The statute of limitations. The claim for unjust enrichment is generally time barred after three years beginning with the end of the year in which the payment was done. That is the content of a recent ruling by the BGH (1.6.2011 – V III ZR 91/10). Even though the claim for unjust enrichment may be time barred, after the contract ends the landlord still has to return the whole amount of deposit which he collected – including the amount in excess.

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Landlord Taking Pictures After Termination

 

This question pops up every now and then: When a lease has been terminated and the landlord wants to show the rented premises to prospective tenants - How often may he do this, and which prior notice does he have to give?

 

Landlord visiting his rented property

 

The District Court in Frankenthal (Az. S 218/09) has handed down an appeal decision that is interesting in this context: Your landlord may take pictures of your apartment with your belongings etc. in it to document the condition of the apartment and as evidence of damages. However, he is not permitted to publish these pictures or to otherwise provide them to third parties such as prospective tenants.

 

The court decided that providing the pictures to third parties is an intrusion on the current tenant's private sphere and therefore not permissible. The landlord has no right to take pictures with this intent.

 

 

Vermieter haben auch nach der Kündigung eines Mietvertrages keinen Anspruch darauf, von der noch bewohnten Wohnung Fotos zu machen. Denn damit verstoßen sie gegen das Persönlichkeitsrecht der Mieter.

Die Vermieterin habe zwar das Recht, Fotos zu machen, um etwaige Schäden zu dokumentieren. Nicht zulässig sei es, Bilder der noch bewohnten Wohnung zu machen, um sie möglichen Mietinteressenten zur Verfügung zu stellen.

 

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Noise And Neighbours - How Much To Accept, How To Deal With Too Much

If this Info is incorrect them let me know and I will edit the post..

 

This Info comes from my brother-in-law who works in Hausverwaltung - regarding noisy neighbours..

 

What he told us regarding noise..

 

No noise is allowed in the legally designated quiet times.

Noise outside these times can also not be excessive and disrupt the life of other tenants - basically, saying I can play my music loud as it is 14:00 on a Saturday is incorrect.

 

Exception to this are things like Children, washing machines, showers etc (however I guess it is a grey area should your bathroom (where the washing machine is) be over someone's bedroom and the thing make a hell of a racket while it is running.

 

Should your neighbours make noise, then the first option is to notify the neighbours of the problem.

 

If that does not help you should info your Hauseverwaltung of the problem and pass it on to them (although they may tell you your only course of action is to call the police, this is incorrect).

It is the responsibility of the Hausverwaltung to inform the noisy party that there has been a complaint regarding noise and to ask them to keep it down.

If this does not work, you complain to the Hausverwaltung again and they should take more drastic action (abmahnung/mahnung - not sure of the term). At this point you can state your intention to reduce the rent.

 

The bro-in-law said he would only call the police in cases where the party was very noisy, went on past a reasonable time and they refuse to tone it down.

 

He said however that a reasonable approach is always better.

In our case, after the guys upstairs went from 1 party every two weeks to 5 in a week (going on past 01:00 - room above our daughter's bedroom - didn't bother her that much but we thought enough was enough and wanted to stop it before it started to bother her) we waited until the next day and spoke the them about it.

 

No threats, no trouble, just calmly stated that the noise had been extreme the past week and the room is over our daughter's bedroom. We will have to wait and see how that goes.

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Tenant´s lease reduction vs Landlord´s lease termination

 

Here is a delicate issue in rental law where the tenant´s and landlord´s interests clash:

 

The tenant is faced with a defect in his apartment for which he deems the landlord responsible. He notifies the landlord about the defect and cuts the rent. The landlord disputes responsibility blaming the tenant for the defect. Months go by. Following the reduction by the tenant the “unpaid” lease now amounts to more than two months. The landlord terminates the lease.

 

The defect at issue - mold.

 

The question put to the BGH in a fresh decision was if the fact that the tenant erred in attributing the cause of the defect, here the emergence of mold, to the landlord prevented the landlord from resorting to the termination of the lease.

 

The BGH denied the tenant such a privilege. He had to bear the consequences of his erroneous assessment regarding the cause of the defect. As normal standards of accountability apply, even a minor negligent error has the result that the tenant is legally speaking “ in arrears” with his payments paving the way for the landlord to terminate the contract extraordinarily once the outstanding amount reaches a certain level. In certain circumstances, the tenant can render a termination on extraordinary grounds invalid if he fully pays the accumulated outstanding lease within two months after being sued for eviction. In the case decided by the BGH the time limit was passed.

 

Some background:

 

If the rented apartment becomes defective the tenant can assert a rent reduction once he puts landlord about the defect in the know. If, however, the tenant caused the defect he is responsible for remedying the defect himself and consequently cannot claim a reduction in rent. In certain cases a distinction is necessary between a “proper” defect and wear and tear. Ordinarily, remedying defects in the shape of “wear and tear”, though caused by the tenant, are still the responsibility of the landlord unless they are covered by a notorious but valid “Schönheitsreparturklausel”.

 

At this backdrop, the tenant is faced with a challenge in two ways.

 

The first are cases where a defect appears and its cause seems unclear. Mostly “mold” is a perfect candidate for such a scenario. This was the case here, too. Roughly speaking, in mold cases the landlord has to rule out that building defects are responsible for the appearance of mold. If the landlord succeeds the tenant has to demonstrate that he has duly ventilated the apartment with the courts setting different requirements as to which frequency is still just and reasonable. Sometimes, the mold issue only appears for the first time after the landlord has installed new windows with special isolation properties. Here, the question is whether the landlord was obliged to at least advise the tenant of new changed requirements in ventilating the rooms. In the case before the BGH, for example, the tenant wrongly assigned the appearance of mold to building defects. The tenant had two aquaria and one terrarium prompting the Court to remark that this fact should have impressed on him the need for increased ventilating requirements because of the heightened humidity in the flat.

 

The second challenge has to do with determining the exact amount of the rent reduction as a response to a defect. The amount subject to reduction depends on how severely the defect actually impairs the usage of the flat. There is enormous case law where courts from various districts have come up with percentages for all sort of defects. Still, as mentioned, the specific facts of the case are crucial. The final arbiter of the amount is the court itself.

 

In both cases – wrongly attributing the cause of the defect to the landlord´s sphere of responsibility and opting for too big a reduction in rent – the landlord can respond with a termination of the contract once the level of the outstanding lease reaches a certain benchmark, e.g. two times the monthly rent. The decision of the BGH makes it a rare occasion to plead successfully that not even negligence was involved when wrongly attributing the cause of the defect to the landlord. The same could be true in the case where the court comes to a different conclusion regarding the amount to be reduced from the rent.

 

In cases where those uncertainties rear their head the solution is to continue paying the lease while explicitly “reserving your rights”/ “unter Vorbehalt” due to defect in question.

 

This move protects against a possible threat of termination down the road where the amount of unpaid lease keeping accumulating. The question of responsibility, though, needs to be resolved nonetheless. To this end, the tenant as plaintiff can opt for a straight lawsuit that deals with his primary objective (reimbursement of overpaid lease due to the defect, declaratory judgment that lease is reduced to the persistent defect, suing for removal of the defect as such). At the core of this lawsuit determining to large extent its outcome will be the expertise of a court appointed expert. As an alternative, the tenant could engage in a special proceeding where a court appointed expert will give his findings upfront before engaging in the lawsuit as such. If possible it is advisable to get an opinion of a competent private expert first, especially if those costs are less than compared to a court appointed expert. If the private expert is engaged at a stage in the dispute solely with a view to enforcing one´s rights in the court, those costs could be recovered later in court.

 

BGH dated July 11, 2012 - VIII ZR 138/11

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