Koblenz Regional Court, 16 November 2016, 2 S 99/15
Due to the refugee crisis, many refugee centres are still overcrowded. Containers and tents are therefore being set up in many places to accommodate asylum seekers. In addition to municipal accommodation, many citizens are now also taking the initiative and renting out their empty flats.
However, it must be borne in mind that letting flats to refugees can give rise to a whole range of legal and factual problems that can only be solved by drafting contracts consistently.
Facts of the Case:
The residential complex was designed as a student residence under building law
The plaintiff and defendant in this case were members of a condominium owners' association, and the plaintiff was also the administrator of the condominium complex. The residential complex had been operated as a student housing complex since its construction. In addition, the building permit contained a clause stating that the permit would only be granted for use as a student residence.
In the declaration of division dated 25 January 1984, the type of use was regulated under § 7:
„1. Each co-owner is authorised to use their flat for residential purposes or part ownership for commercial purposes. Any change in the type of use requires the consent of the administrator. During the first 30 years, commercial use is only possible with the written consent of the Federal State of Rhineland-Palatinate, Kultusverwaltung. The provisions of public funding for letting to students must be observed by each owner. They are monitored by the administrator."
Defendant made his double apartment available to refugees
The first 30 years had already expired for the defendant, so he made the double flat he owned available to the city of Trier for the accommodation of asylum seekers. Initially four asylum seekers were accommodated there, but since September 2015 only two or three - the number was disputed between the plaintiff and the defendants.
Plaintiff filed an urgent application for an injunction
The plaintiff then applied for summary proceedings to order the defendant to refrain from making its premises available to the City of Trier or other third parties for the purpose of accommodating asylum seekers and to rent them exclusively to students with immediate effect. In addition, the plaintiff requests that the defendant be threatened with a fine of up to 250,000 euros for each case of non-compliance. Otherwise imprisonment.
Judgement of the Koblenz Regional Court
The local court initially appealed to rejected the application for a temporary injunction. The plaintiff appealed against this decision and continued to pursue its original cause of action. However, the Koblenz Regional Court also ruled that the plaintiff's appeal had no prospect of success, as there was no entitlement to an injunction.
Regional court ruled against the plaintiff
The plaintiff was not entitled to the requested injunction, as the agreement between the defendant and the City of Trier did not violate any legal requirements.
The judgement of the Federal Court of Justice - case reference: V ZR 72/09 - states that as long as the other flat owners are not impaired beyond reasonable limits, it is permitted to rent the condominium even to holiday guests who change daily or weekly.
Use for refugees would be no more disruptive than for students
The use of the defendant's condominium by the city of Trier as accommodation for asylum seekers did not affect the other flat owners any more than the intended use as student accommodation. This was justified by the fact that a significantly higher fluctuation of residents was also to be expected when letting to students. On the other hand, the average processing time for asylum procedures, e.g. for Afghans, was 14.6 months in the Trier 1 reception centre as at 1 March 2016. In addition, the processing times for asylum applications from nationals of other nations would take between 5.9 (Macedonians) and 32.0 (Iranians) months. This means that accommodation for asylum seekers would be more likely to have a lower fluctuation rate than would be the case if the accommodation was actually rented out to students.
Occupancy by 2 to 3 people is also legally justified, according to the opinions expressed in case law and literature on the permissible occupancy of residential space for temporary accommodation of asylum seekers or resettlers (OLG Stuttgart, decision of 13.08.1992, ref.: 8 W 219/92: 2 people per room for a stay of approx. ½ year; OLG Frankfurt/Main, decision of 11.05.1994, ref.: 20 W 216/94: 6 sqm per person; AG Laufen, judgement of 04.02.2016, ref.: 2 C 565/15 WEG: 8 persons on 92 sqm; Bärmann-Suilmann, WEG, 13th edition 2015, § 13 marginal no. 35: 3 persons per room with a length of stay of at least ½ year; Jennißen-Schultzky, WEG, 4th edition 2015, § 15, marginal no. 28 [with reference to the Hessian Housing Supervision Act]: 9 sqm per person).
Source: Koblenz Regional Court
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