Koblenz Higher Regional Court, 22/06/2017, Ref.: 1 U 1155/16
Compensation for damages due to the tenant's failure to return the rented property in accordance with the contract can be claimed either by means of a fictitious calculation of damages or by means of a concrete calculation of damages. A fictitious calculation of damages is made by obtaining an expert opinion. This is usually used if no actual repair is to be carried out. However, it should be noted that taxes included in the expert opinion cannot be taken into account. The actual damage calculation, on the other hand, is the actual invoice amount that is claimed from the other party. However, a combination of fictitious and actual damage calculation is not permitted.
Facts of the Case:
As the landlord, the plaintiff demanded compensation for the removal of objects and defects
After termination of the tenancy, the plaintiff is seeking payment of damages from the defendant in the amount of EUR 14,432.50 (damage estimate by an expert) due to the removal of the heating boiler, the removal of radiators and lamps, water pipes not sealed flush with the floor, unclosed lamp cut-outs and dowel holes, advertising not removed, missing shutter hinges, a non-functional shutter hinge, sealing compound (silicone, PU foam) not removed, and waste and dirt left behind.
Plaintiff sued for a declaration that tenant must also pay VAT on repair work
Furthermore, he requested a declaratory judgement that the defendant would also be obliged to pay the VAT incurred if the repair work was carried out. Finally, the plaintiff demanded the pre-trial legal fees of EUR 1,100.50 plus interest based on a value in dispute of EUR 17,174.68.
The regional court of first instance largely followed the plaintiff's opinion
The Regional Court awarded the plaintiff damages in the amount of EUR 5,870.00 plus interest of 5 percentage points above the base interest rate since 13 August 2015 (date of lis pendens).2015 (date of lis pendens) and, based on this, determined that the defendant was obliged to pay the VAT incurred if the repairs were actually carried out and, based on this amount, to reimburse pre-trial legal fees of EUR 650.34 plus interest of 5 percentage points above the base rate since 13 August 2015 (date of lis pendens). The remainder of the claim was dismissed.
The Regional Court reasoned that the defendant had breached the contractual obligation to return the premises and ancillary contractual obligations by its behaviour when moving out with regard to the condition of the premises. This justified the damages awarded.
The defendant appealed against this judgement and requested that the case be dismissed in its entirety. Among other things, it claims that it would not have purchased certain items, such as radiators and a heating boiler, if it had known that the tenancy would be terminated before 10 years had elapsed.
Appeal judgement of the Koblenz Higher Regional Court
Court of Appeal also saw the landlord's claim for damages with VAT
In the opinion of the Koblenz Higher Regional Court, the appeal is admissible but unfounded. The Regional Court had correctly assumed that the defendant was liable for damages due to a breach of primary and secondary contractual obligations.
The Court of Appeal firstly states that a term stipulated in the rental agreement does not justify the assumption that the rental agreement will only actually be terminated at this time, as there is always the possibility of termination for good cause (extraordinary termination).
Furthermore, the purchase of new radiators and a new boiler was merely a calculation by the defendant that could not be influenced by the plaintiff and from which the plaintiff could not suffer. Therefore, the removal was inadmissible.
The court also stated that the defendant was obliged under the tenancy agreement to hand over the rented premises in a ready-to-occupy condition. Ready for occupation means that the tenant returns the rooms in a state of maintenance that enables the landlord to hand over the rooms to a new tenant in a contractual condition suitable for occupation (see BGH, judgement of 12.03.2014 - XII 108/13). The aforementioned clause is generally effective, as the defendant is not unreasonably disadvantaged by it. The clause would remain below the requirements for comprehensive cosmetic repairs and was therefore milder. This would not change even if the tenant had already been obliged to remove signs of wear and tear when moving in, provided that he received proper compensation for this, such as a waiver of the first two months' rent.
With regard to the required ready-to-occupy handover by the defendant, the defendant was obliged to remedy the defects reported by the plaintiff, such as the remaining advertising or the open lamp and dowel holes. The damages awarded corresponded to the cost estimate of an expert and therefore there were no objections to this, in particular the calculation was conclusive and comprehensible.
The defendant's obligation to pay damages also includes the payment of sales tax
Finally, the Court of Appeal states that the defendant's obligation to pay damages in the event that repair work is actually carried out to rectify the damage caused by the defendant also extends to the reimbursement of the VAT incurred in this respect. The plaintiff should not be deprived of the reimbursement of the VAT incurred in order to restore the condition that would have existed if the circumstance requiring reimbursement had not occurred (cf. section 249 (1) sentence 2 BGB). However, the VAT is limited to the amount determined by the fictitious damage calculation. If the plaintiff would like to receive a higher amount of VAT, he must switch to the actual compensation for damages. A combination of fictitious and concrete damage calculation is not possible.
Source: Koblenz Higher 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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