Munich Regional Court, 27 October 2016, Ref.: 31 S 58/16
Noise can be dangerous and can make people who are exposed to it ill. Construction noise in particular can come from very different sources. On the one hand, there may be construction work in a tenant's home. On the other hand, the disturbing construction noise can also come from outside, for example from the neighbouring house, from a neighbouring construction site or from road works.
In the practice of Lawyers for tenancy law Noise nuisance affecting the rented property is a frequent cause of disputes under tenancy agreements. If there is a defect in the rented property due to noise nuisance, there may be a right to a rent reduction under tenancy law, but the tenant may not be entitled to reduce the rent, as there are exceptions here too.
The burden of presentation and proof for the noise lies initially with the tenant. The Federal Court of Justice has ruled that an extensive noise report does not have to be submitted. It is sufficient for the tenant to describe in detail when the noise occurred, what type of noise it was and how long the noise lasted (BGH 29.02.2012 Ref. VIII ZR 155/11). However, it is generally recommended that the tenant nevertheless keeps a noise log so that the noise can be documented in court with certainty as evidence. You can find such a noise log here.
Dispute over rent reduction due to construction site noise
This case involved a legal dispute between a tenant and her landlord. The tenant demanded the repayment of overpaid rent and invoked a rent reduction due to noise caused by a nearby construction site. The construction site was located in the immediate vicinity of the rented terraced house.
Munich Regional Court confirms BGH case law
In its judgement, the Munich Regional Court confirmed its own case law and that of the Federal Court of Justice (BGH). According to the court, it is sufficient to demonstrate recurring impairments if the type, time, duration and frequency of the impairment are sufficiently described.
Construction site noise as a defect in the rental property
In the opinion of the court, normal construction site noise is not generally to be tolerated. Construction site noise can constitute a defect in the rented property if it impairs the suitability of the rented property for use in accordance with the contract. The tenant must prove that the noise actually interferes with the use of the rented property.
Burden of proof on the landlord in the event of an obligation to tolerate
The landlord bears the burden of proof if she invokes her duty to tolerate noise from the builder of the neighbouring property. It must prove that the noise is normal for the location and reasonable. It is also up to the landlord to prove that any reduction in suitability is insignificant.
Abstract possibility of construction measures is not sufficient
The court clarified that only concrete indications, such as structural alterations, could justify the exclusion of a rent reduction. The mere possibility that construction work could take place somewhere is not sufficient to exclude a rent reduction.
Source: Munich Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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