Steinfurt Local Court, 10.04.2014, 21 C 987/13
Tenants often ask themselves whether they are obliged to tolerate the landlord entering or photographing their flat.
In principle, by concluding the tenancy agreement and handing over the flat to the tenant, both parties to the tenancy agreement agree that the tenant exercises domiciliary rights in his flat from the conclusion of the agreement.
This domiciliary right naturally also applies to the landlord, which can often lead to conflicts between the landlord and the tenant.
This is because the landlord only has the right to enter and inspect the flat for special reasons.
Typical reasons for a right of inspection and access are, for example
- Reading of measuring devices in the home.
- Preparation of modernisation and maintenance measures
- Showing the flat to prospective tenants or buyers.
In the above-mentioned judgement of the Steinfurt Local Court, the court had to decide whether the tenant was obliged to tolerate the photographing of his flat for the purpose of creating an internet advertisement.
Case Facts
The plaintiff was the owner of a flat that was rented to the defendant tenant. The flat was located in a building that belonged to a homeowners' association, which also included another co-owner. The plaintiff planned to sell her flat, but the co-owner opposed this intention and refused to give his consent to potential buyers. The defendant tenant also refused to take photographs of the interior of the flat and to allow prospective buyers to view it. The plaintiff's lawyer then sent the tenant a warning letter, arguing that he had to tolerate the photographing of the interior for an exposé and for an advert on the internet.
Decision of the Local Court of Steinfurt
The Steinfurt Local Court ruled that the plaintiff was not entitled to have photographs taken of the rented flat. It was emphasised that there is no legal standard that obliges the tenant to tolerate such measures. Instead, the interests of both contracting parties must be appropriately taken into account when weighing up the situation. The fundamental rights values also play a role here, which must be taken into account when interpreting the substantive law.
Weighing up fundamental rights
On the plaintiff's side, the right of ownership under Article 14 of the German Basic Law (GG) gave her the right to freely sell her flat. On the tenant's side, however, Article 14 of the Basic Law also protected his rightful ownership of the flat. In addition, the production and publication of photos of the interior interfered with the tenant's general right of personality, which is protected by Art. 2 Para. 1 and Art. 1 Para. 1 GG. Furthermore, this also fell under the protection of the inviolability of the home pursuant to Art. 13 GG.
Judgement: Priority of the tenant's interests
The court clarified that the plaintiff had voluntarily relinquished direct possession by renting out the flat and that the tenant was entitled to undisturbed use. The publication of the photos on the internet would mean a considerable invasion of the tenant's privacy, as they would be made accessible to an indefinite number of viewers. The plaintiff's right of utilisation weighed less heavily in comparison. It was pointed out that flats could also be sold without interior shots, such as exterior views or floor plans. Overall, the court ruled in favour of the tenant, whose personal rights weighed more heavily than the plaintiff's interest in better marketing.
Source: Steinfurt Local Court
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