Regional Court of Saarbrücken, 17/07/2015, Ref.: 10 S 203/14
The German Civil Code protects the tenant through various warranty rights, such as compensation for damages, cancellation, reduction and reimbursement of expenses. The tenant's warranty claims can generally exist in addition to the claim for fulfilment. In addition, if there is a defect, the tenant is entitled to refuse the landlord's claim to payment of rent until the defect has been rectified. The defence of § 320 BGB helps him in this respect.
According to this provision, anyone who is obliged under a mutual contract may refuse to fulfil their obligation until the consideration has been paid, unless they are obliged to perform in advance.
Such a right of retention can be recognised in addition to the reduction if the amount is 3 to 5 times the monthly reduction amount. The right of retention ends with the elimination of the defect or the termination of the tenancy.
The main difference to Section 273 BGB, which also establishes a right of retention, is that the defence under Section 320 BGB is the result of the mutual connection between performance and consideration in the contract. This connection leads to fulfilment step by step. The defence pursuant to Section 320 only has the effect that this connection is also respected in the process. In the case of the general right of retention pursuant to Section 273 BGB, on the other hand, the defence must be exercised in order to establish the step-by-step connection between two independent, albeit connected, claims.
However, in the following judgement, the Regional Court of Saarbrücken states that a right of retention to be derived from Section 320 BGB due to a claim for rectification of a defect will only be taken into account in the process if the tenant makes sufficient factual submissions to enable the court to examine the objection of the right of retention. To this end, it is necessary to demonstrate at least the functional connection between the claim and the counterclaim.
It also comments on the so-called consequential damage caused by termination, which is only reimbursable if the tenant could feel compelled to terminate the tenancy for cause due to a breach of contract by the landlord. Expenses incurred by the tenant prior to the realisation of the reason for termination are not caused by the breach of contract in the legal sense and are therefore not reimbursable.
Facts of the Case:
Tenant had terminated tenancy without notice due to music noise from neighbouring flat
The parties are in dispute about the justification for the extraordinary termination of a residential tenancy by the plaintiffs. The owner of the house in which the plaintiffs rented a flat under the contract dated 3 September 2003 is the defendant (1).
The gross monthly rent was EUR 1,225. It was paid to the intervener in accordance with the contract. The plaintiffs paid a deposit of EUR 1,700.
The rental agreement states: "The tenants are authorised to play music during the times specified in the house rules. As a rule, the amount of music practised should not exceed 5 hours per day. The landlord is aware that the tenant, as a professor at the Saarland University of Music and Theatre, is dependent on appropriate use of the flat. On Saturdays, Sundays and public holidays, music may be played from 11.30 a.m. onwards."
In 2012, defendant 2) moved into the flat above the plaintiffs' flat, which was occupied by defendant 1).
Since then, the plaintiffs have felt specifically disturbed by noise from the defendant's flat, particularly in the form of loud footsteps and the playing of loud music. In autumn 2012, they attempted to hold clarifying talks about a time arrangement for undisturbed music practice. This failed.
The tenants initially claimed a rent reduction
In a letter from the plaintiffs dated 8 December 2012 to the defendant (1), they complained of further noise disturbances, threatening a rent reduction of 10 %.
The defendants celebrated Christmas 2012 together with guests, which also disturbed the plaintiffs. After the plaintiffs returned to their flat because they had not spent the days leading up to the New Year, they noticed that a new letterbox had been installed on which the plaintiffs' name could not be found. The plaintiffs only received a key to this letterbox after filing a lawsuit in March 2013, which is why they reduced the rent by a further % by then.
In the end, the tenants cancelled the lease without notice and in due time
The plaintiffs received a warning on 15 January 2013, which was followed by a letter of 4 February 2013 terminating the contract for cause with effect from 26 April 2013, or alternatively with effect from 30 April 2013.
From December 2012, the plaintiff reduced the rent by EUR 122.50 and in January by EUR 182.75; she retained the further rents for February, March and April 2013.
The landlord also cancelled due to rent arrears
Defendant 1) then gave notice of termination without notice due to rent arrears in a letter dated 6 March 2013. The flat was returned in April 2013.
The service charge statement for 2012 submitted on 12 March 2013 showed an additional payment of EUR 73.85. On 13 January 2014, the defendant 1) submitted the service charge statement for 2013, which showed an additional payment of EUR 2,134.41.
The plaintiffs argued that the defendants had systematically and deliberately disturbed the enjoyment of music in the flat, which constituted a breach of duty under the tenancy agreement. The defendants were therefore obliged to pay damages. In addition, additional annual costs of EUR 4,500 were incurred for the new rental property. They had incurred relocation costs of EUR 2,120 and estate agent costs of EUR 3,094.
In a letter dated 22 February 2013, the plaintiffs offset these claims in the amount of EUR 3,123.75 against the rent claims due by the end of the rental period. They asserted the excess amount of the counterclaims in a lawsuit. They also demanded an invoice for the deposit paid.
The tenants offset the costs of the move against the rent claims, the rest was sued for
Defendant 1) has quantified the claim for repayment of the deposit including interest at EUR 1,920.73 and, for his part, has declared offsetting against the basic rent for the months of February to April 2013 in the amount of EUR 2,775, the remaining rent for December 2012 in the amount of EUR 115, the remaining rent for January 2013 in the amount of EUR 183.75 and the service charge statement for the years 2012 and 2013 totalling EUR 5,282.01.
At first instance, the plaintiffs applied for a declaration that the tenancy was terminated by the extraordinary termination by the plaintiffs on 26 April 2013, a declaration that the defendant 1) had no rent claims against the plaintiffs until the termination of the tenancy in accordance with the application under 1) and that these claims were extinguished by the set-off of 22 February 2013. In addition, they requested that the defendants be ordered as joint and several debtors to pay the plaintiffs EUR 6,640.25 plus interest of five percentage points above the base interest rate since the pendency of the action and to order the defendant 1) to pay the plaintiffs the amount of EUR 1.700 EUR with regard to the interest earned within the rental period from 1 October 2003 to 5 April 2013 and to pay the amount of EUR 1,700 plus interest earned plus interest thereon in the amount of five percentage points above the base interest rate since service of the extension of the action to the plaintiffs.
The defendants have requested that the action be dismissed, as the late provision of the letterbox key does not justify a reduction, as the defendants always sent the post to the plaintiffs. There had also been no disturbance of the tenants, neither by a Christmas disco party nor by demonstratively loud walking or other disturbances of music-making.
Defendant 1) does not have standing as he is not the landlord, but rather the intervener. He had entered into the tenancy agreement.
The local court dismissed the claim, but the tenants lodged an appeal against it
The local court dismissed the action, whereupon the plaintiffs appealed and pursued their claim in full.
The plaintiffs were of the opinion that the local court had wrongly limited the findings on the noise nuisance at issue to the incidents of 17, 19, 20 and 21 January 2013 that occurred after the warning. In a period between 14 December 2013 and 10 January 2013, the witnesses had reported noise nuisance, which had to be included in the legal assessment.
There was a procedural error, as the Local Court considered the submission that on 16 January 2013, after the start of the piano playing in the defendant's flat, marching up and down with loud audible steps had begun to be disputed.
The court had disregarded evidence because it had ignored the audio recordings of the incidents of 11 January, 17 January and 21 January 2013.
However, a targeted and systematic disruption can be understood from the evidence. The court had announced on 13 October 2014 that it would obtain an expert opinion on the amount of damages, which is why the decision was a surprise decision. No corresponding notice had been given, which is why the plaintiffs would not have been able to comment in detail on the results of the taking of evidence to date and repeat the evidence already offered.
The plaintiffs had not moved out of their own free will; rather, they had been forced to give up the flat due to systematic noise. The late provision of the letterbox key entitled the tenants to a rent reduction.
The plaintiffs requested that the judgement of the Saarbrücken Local Court of 12 November 2014 - 3 C 115/13 - be amended in accordance with the motions at first instance.
The defendants and the intervener requested that the plaintiffs' appeal be dismissed. They maintained the view that the defendant's flat did not emit any loud noises, that it would not have been possible for the plaintiffs to make music at the contractually agreed time. Only the noises that could normally be expected had emanated from the use of the flat.
In addition, the defendant's statement of 27 March 2014 denied all the alleged noise nuisance. With regard to defendant 2), there was no evidence that she was to be held liable as a nuisance. The fact that a further warning was issued on 21 January 2013 has not been confirmed.
Judgement of the Regional Court of Saarbrücken
Regional court ruled in favour of the landlord
The Regional Court of Saarbrücken ruled that the admissible appeal was unsuccessful, as the judgement of the Local Court was neither based on an error of law nor did the facts to be taken as a basis in accordance with Section 529 ZPO justify a different decision (Section 513 (1) ZPO).
The plaintiffs' application for a declaratory judgement, aimed at establishing that the tenancy was terminated by the extraordinary termination of the plaintiffs on 26 April 2013, was unfounded, as the termination without notice of the defendant 1) of 6 March 2013 had already led to the termination of the tenancy. The landlord status of defendant 1) was no longer in dispute in the appeal proceedings.
The conditions pursuant to Section 543 (2) No. 3a, Section 569 (3) No. 1 BGB, according to which the landlord is entitled to terminate a residential tenancy without notice if the tenant is in arrears with the payment of a part of the rent for two consecutive dates that exceeds the rent for one month, were met on 6 March 2013.
According to § 4 No. 1 of the rental agreement, the monthly rent of EUR 1,225 was to be paid to the landlord by the third working day of the month at the latest. The rent claims for the months of February and March were outstanding at the time of the notice of termination.
Rent reduction claim was lower, landlord was entitled to terminate the contract
Although a claim for a reduction in rent due to noise in accordance with Section 536 (1) BGB may exist, if this is taken as a basis, there is still a default in payment that exceeds the amount of one month's rent for two consecutive dates.
A reason for a reduction in rent exists if the tenant's use of the property is impaired by noise. In the case of noise disturbance by a neighbour, however, this is excluded if the noise is attributable to the normal use of the flat.
If one were to assume that the plaintiffs' statement of facts was true, a noise development that served the purpose of preventing the plaintiffs from playing the piano would, in principle, constitute a withholding of the use of the rental property that would entitle them to a reduction. A reduction of 20% could not be considered. This is because playing the piano is only part of the use of the rented property and noise, on the other hand, does not interfere with the elementary function of a flat as a home.
In December, the plaintiffs had only claimed a reduction rate of 5 %, which is a relevant self-assessment.
If one now assumes a further reduction quota of 5 % due to the withholding of the letterbox key, the rent reduction to be recognised would amount to 25 % at most and would therefore not lead to the cancellation of the default in rent.
In addition, the plaintiffs were not entitled to assert the right of retention until the "rectification of defects" in a manner that excluded default.
It was already questionable whether the noise nuisance even constituted a defect within the meaning of Section 536 (1) BGB, which would justify a right of retention contrary to the rent claim. If the debtor owes a positive act and can demand an omission from the creditor, a right of retention with regard to the claim for injunctive relief is only to be recognised within the scope of application of Section 273 BGB if the breach of the obligation to cease and desist is either a permanent condition or if the debtor would have to fear that the performance owed would be misused to breach the obligation to cease and desist, i.e. if the debtor's performance would to a certain extent encourage the breach.
This principle is also transferable to Section 320 BGB: The difference between the two rights of retention with regard to the effect excluding default to be considered in the present case is solely that in the scope of application of Section 320 BGB, the mere existence of the defence prevents the debtor's default, whereas the debtor must assert rights of retention under Section 273 BGB in the sense of a genuine defence in order to exclude the debtor's default.
Otherwise, no distinction should be made between the rights under Sections 273 and 320 BGB in the present case. Neither of the prerequisites for recognising a right of retention resulting from the claim for injunctive relief were met.
According to the plaintiffs, there was also no permanent noise, but only a sporadic offence. It was not apparent that the defendants had felt particularly challenged to cause noise after receiving the rent payment.
A right of retention derived from a claim for injunctive relief that excludes default is not practicable, as the tenant is not entitled to an unlimited right of retention. Rather, it should be based on the amount of the outstanding defect rectification and thus on the rectification costs.
However, if the defect-free performance does not consist in the production of a work, but in an omission, this can hardly be determined.
The fact that the plaintiffs had not asserted the existence of the defence in the proceedings was also an obstacle.
Right of retention did not exist
It has not been uniformly decided which prerequisites are required for the assertion of a right of retention to have an effect that excludes default. In any case, it is not necessary to formally raise a legal defence within the scope of Section 320 BGB, but it is nevertheless incumbent on the tenant within the scope of application of Section 543 BGB to make it clear that he is withholding the rent due to the defects.
Another view assumes that even an implied defence at the level of substantive law is only required when invoking a right of retention pursuant to Section 273 BGB, not in the case of counterclaims under Section 320 BGB.
However, the question should be considered in particular in light of the procedural implications. The defence must in any case be sufficiently substantiated. Therefore, in accordance with the principle of production of evidence in civil proceedings, it may only be included in the court's judgement if the parties have presented sufficient facts to enable the court to examine the objection of the right of retention.
If, in the classic cases of the right of retention due to defects that have not been rectified, the tenant does not provide any information on the costs of a possible rectification of defects, the court is not required to clarify the facts ex officio. In this case, the defence remains unheeded, even if it is undisputed that there is a claim for the removal of defects and a right of retention to be derived from this.
Thus, the functional connection between the claim and counterclaim must be demonstrated with sufficient clarity, which is lacking in the present case.
It had not been made clear either in the proceedings or before the proceedings that the plaintiffs had stopped paying their rent because of the continuing noise. They had not commented on the amount of a possible right of retention.
The plaintiffs had stopped paying the rent because they had imagined that they could offset the outstanding rent for the remaining term of the tenancy against the deposit. It was not apparent that the non-payment was a demand to induce the defendant 1) to desist.
The rent claims due at the time of the cancellation were also not extinguished by offsetting. In a lawyer's letter dated 22 March 2013, the defendants declared the set-off against the rent claims and offset the brokerage costs of EUR 3,094 and relocation costs of EUR 2,000.
At the time of offsetting the removal costs, these had not yet been incurred, so that the offsetting already failed due to an existing claim and the counterclaim submitted for offsetting was therefore not yet due at the time of offsetting.
According to § 387 BGB, offsetting can only take place if the offsetting party can demand the payment due to it. The counterclaim submitted for offsetting must therefore be fully effective and due.
According to the removal costs invoice, the removal was carried out on 5 April 2013, the costs were invoiced and paid on the same day. Consequently, a claim for compensation for these expenses based on Section 280 (1) BGB was due on 5 April 2013 at the earliest.
The plaintiffs could also not effectively offset the brokerage costs incurred, as the plaintiffs had not conclusively presented the requirements for the existence of a corresponding claim for damages.
The term "consequential damage caused by termination" is misleading
This is referred to as consequential damage caused by termination, i.e. claims for damages that the tenant derives from expenses incurred as a result of the loss of the flat. However, the definition is incorrect. This is because the claim for damages to be derived from Section 280 (1) BGB does not find its substantive legal basis for liability in the loss of the flat caused by the notice of termination. Rather, it lies in the fact that the landlord has committed a breach of contract for which he is responsible, which caused the tenant to give notice of termination.
Therefore, the expenses claimed as damages would be based on a voluntary financial disposition of the tenant, so that the legal principles developed in the general law of damages with regard to § 249 BGB would apply.
The quality of damage is to be recognised for such expenses if the creditor of the claim for damages felt compelled to incur the expense due to the debtor's conduct.
In order to affirm the attribution of voluntary expenses under liability law in cases of so-called consequential damage caused by termination, the tenant must have felt that a breach of contract by the landlord had led to extraordinary termination.
This meant that there had to be a reason for termination that authorised the extraordinary termination of the tenancy and permitted the attribution of damages for breach of contract and expenses.
Expenses that the tenant had already incurred prior to the realisation of the reason for termination were not caused by the breach of contract. Their compensation is ruled out within the framework of §§ 280, 249 BGB.
This is also in the interests of the landlord in view of the fact that the landlord should not be liable if a tenant decides to terminate the contract for autonomous reasons and uses a minor breach of contract by the landlord as a reason to terminate the tenancy in order to burden the landlord with regularly considerable costs for moving house and possible additional expenses for rent.
The requirement of the objective existence of the reason for termination does not force the tenant to terminate early in order to receive the claim for damages without knowing whether the search for a replacement flat within the notice period promises success in the short term.
Such a necessary causal connection has not been proven here. Within the scope of application of Section 543 (1) BGB, the tenant is only entitled to extraordinary termination if the landlord continues his behaviour in breach of contract either after the expiry of a deadline set for remedial action or after a warning has been issued (Section 543 (3) sentence 1 BGB).
A warning was only issued by the plaintiffs in a letter dated 15 January 2013. Within the scope of application of Section 314 (2) BGB, the debtor must not only be informed of the breach of the precisely specified contractual obligations, but must also be warned that there will be consequences in the event of a further breach of contract. Although a threat of termination is not required, the wording of the warning must make it clear that the maintenance of the contractual relationship is at stake if the offending behaviour continues. A mere reprimand is not sufficient.
Tenants had not been sufficiently threatened with the consequences
These principles are also applicable in the context of Section 543 (3) sentence 1 BGB. However, the plaintiffs had not fulfilled these requirements in the letter dated 8 December 2012. Although they had complained about the "background noise" from the defendant's flat and announced a rent reduction due to the noise, they had not threatened any further consequences. It was only in the letter dated 15 January 2013 that consequences were pointed out.
A warning was not dispensable pursuant to Section 543 (3) sentence 2 BGB. If the objective facts of the termination were only realised with a continuation of the objectionable behaviour after receipt of the warning, the expenses for the commissioning of the broker could no longer be attributed to this breach of duty in the legal sense.
The estate agent had already been commissioned at the beginning of January 2013 and the rental agreement for the new flat had already been signed on 25 January 2013. The attempt to revise the submission in the oral hearing by means of a subsequent written submission was contradictory and therefore implausible.
In addition, the submission was precluded (Section 296a ZPO), as the pleading was limited to a statement on the results of the evidence and the opposing party's pleading of 10 June 2015.
According to the distribution of the burden of presentation and proof, it was also up to the plaintiffs to conclusively demonstrate and, if necessary, prove the causality between the realisation of the termination facts and the commissioning of the broker.
In accordance with life experience, the court assumes that the search for a suitable new flat began at the beginning of January 2013. Therefore, the decision to terminate the tenancy had already been made before the extraordinary grounds for termination were realised. The estate agent's costs were therefore not adequate consequences that would entitle the tenant to compensation.
As early as March 2012, the plaintiffs had commissioned an estate agent to search for a suitable property. This shows that the motivation to move out had already arisen as a result of the defendant (2) moving in.
Requirements for an extraordinary termination of the tenancy had not been proven
Last but not least, according to the findings of the local court, the actual conditions for extraordinary termination of the tenancy had not been proven.
Firstly, according to the plaintiffs' submission, the rented flat must be "brightly audible". It should be noted that daily piano playing of up to five hours could be perceived by residents of the flat above as disturbing and impairing the use of the flat
Therefore, the purpose of the provision in the tenancy agreement was to allow the plaintiff to play the piano for up to five hours a day and to exclude claims for injunctive relief against her by her flatmates.
However, this does not constitute a mirror-image authorisation for the plaintiffs to restrict the other users of the house in their own residential behaviour.
Unreasonable noise is therefore only deemed to exist if the landlord, in breach of the principle of mutual consideration, deliberately causes noise for the sole purpose of preventing the plaintiffs from playing the piano. However, this had not been proven.
The video files subsequently listened to did not lead to a different result. Overall, the chamber assumes that the plaintiffs' flute playing far outweighed the disturbing noises from the defendant's flat in terms of volume. It was possible to continue the musical performance despite the accompanying noises. If one were to concentrate on the disturbing noises, it was normal that these would come to the fore.
The other incidents, such as the Christmas party, on the other hand, had no connection whatsoever with the plaintiff's piano practice, which made the allegation of deliberate interference with her piano playing appear unfounded.
The chamber was unable to establish any unreasonable noise nuisance from the video sequences. In view of the intensity of the video sequences heard in the oral hearing and in view of the bright soundproofing of the flat, the accusation of intentional noise development did not appear justified.
In addition, the defendants would have no understandable interest in evicting the plaintiffs from the flat. On the contrary, the defendants were financially dependent on the rental income.
The request for a declaratory judgement that the rent claims were extinguished by offsetting was unsuccessful for the reasons stated above.
The sought reimbursement of the expenses for additional rental costs, estate agent costs and removal costs, insofar as they exceed the amounts set off, were also unsuccessful, as the decision to give up the flat in dispute was not an adequate consequence of the serious breach of duty justifying the termination and the plaintiffs were obliged to vacate the flat due to the justified termination by the defendant (1).
In the meantime, the deposit has been settled, so that this claim is also unsuccessful and the plaintiffs have no remaining claim.
Accordingly, the plaintiffs' appeal was unfounded and the judgement of the Saarbrücken Local Court should be upheld.
Source: Saarbrücken Regional Court
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