Ottweiler Local Court, 24 November 2016, Ref.: 16 C 170/15
Section 535 of the German Civil Code (BGB) expressly stipulates the landlord's obligation: "The landlord must leave the rented property to the tenant in a condition suitable for use in accordance with the contract and maintain it in this condition during the rental period."
Consequently, the tenant is entitled to demand that the landlord maintains the rented flat - or house - on an ongoing basis and remedies any defects as soon as necessary, i.e. repairs them. If the tenant is responsible for the defects, the right to rectification of defects is excluded.
If the tenant is given a reasonable period of time to rectify the defect, this must first expire before any further action - e.g. commissioning an expert opinion as to whether the tenant or landlord is responsible for the defect - may be taken.
Initial situation of the tenancy
This case concerned a tenancy between the plaintiff (tenant) and the defendant (landlord), which ended in December 2014. The flat had several defects, including black grouting in the bathroom. The landlord set the tenant a deadline of 15 January 2015 to rectify these defects. After the tenancy ended, the defendant retained part of the rental deposit. The deposit totalled 841.14 euros including interest, while the service charge statement showed a credit of 684.71 euros. The defendant repaid the plaintiff 301.57 euros, but withheld further amounts, which ultimately led to a legal dispute.
Points of contention and claims
The plaintiff demanded a refund of the remaining amount of 1216.60 euros. The defendant justified the retention of part of the deposit with costs for a mould analysis and the removal of mould from the windows. Specifically, this involved 129 euros for commissioning an expert to investigate the cause of the black spots before the deadline had expired, as well as around 248 euros for the removal of mould from the windows. The plaintiff argued that, according to the handover protocol, she was only obliged to clean the black joints in the bathroom, which she had done on time. Mould on the window was not part of the protocol.
Decision of the Local Court
The Ottweiler district court ruled in favour of the plaintiff. It found that the tenant was entitled to a refund of the deposit, as the landlord was not allowed to deduct the costs of the mould analysis or the removal of the mould on the windows from the deposit. The court argued that the mould analysis was unnecessary as it was carried out before the deadline for remedying the defect had expired. The landlord should have waited until the deadline had expired. Furthermore, witness testimony confirmed that the plaintiff had properly cleaned the black joints in the bathroom.
No retention due to additional defects
The court also ruled that the landlord was not entitled to refuse to refund the deposit due to the cost of removing the mould from the windows. As the mould on the windows was not recorded in the handover protocol, the tenant was under no obligation to rectify this defect. Accordingly, the landlord was also not allowed to offset these costs against the deposit.
Source: Ottweiler Local Court
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