Tenancy law: Environmental defects/environmental defects in tenancy law that justify a rent reduction

Environmental defects in tenancy law

You often just want some peace and quiet within your own four walls, especially after a stressful day at work. However, the neighbour's drilling is getting through, the neighbour's children are screaming in the hallway and the other neighbour is stomping back and forth across the parquet floor above you in her high heels. Certainly, a little noise is acceptable from time to time, because according to the law, everyone has the right to free development, especially in their own personal space. Under certain circumstances, however, such a disturbance of the peace and quiet can get out of hand, making it possible to reduce the rent.

However, the question of when noise from one's own neighbourhood can lead to a rent reduction has long been disputed in case law. Such cases are also referred to as environmental and neighbourhood defects, which can lead to a reduction in rent. However, all court rulings are always based on the same problem, as no agreement was made by the tenants in the tenancy agreement regarding noise emissions.

What is a defect in tenancy law?

If a rental property is defective, the subjective concept of defect applies. It always depends on the agreements under which the parties concluded the rental agreement, Section 536 (1) sentence 1 BGB. According to this, a defective item exists if the actual condition deviates from the target condition to the detriment of the tenant. The unfavourable deviation, i.e. the actual condition minus the contractually owed condition, therefore constitutes a material defect for the tenant. This detrimental deviation must represent an impairment for the tenant, which can be of a legal or actual nature, of the use of the rental property and must exist in the rental property itself or affect the rental property from the outside as an environmental defect. However, only insignificant reductions in the suitability of the rental property itself are not taken into account, Section 536 (1) sentence 3 BGB. These are not categorised as a defect. If no agreements have been made, the usual condition of the rented property is decisive.

What does an environmental deficiency mean?

An environmental defect or environmental defect is given if the rental property itself is free of defects and as such is also fit for use, but the situation in the surroundings of the rental property significantly impairs its use - for example by restricting the usability of the flat or the associated communal and outdoor areas themselves. It is not untypical for several individual defects with different causes to occur together and develop a significant impairment.

Environmental deficiencies in terms of noise/noise pollution

The quiet periods in a rented property can be important. You can find these in your own house rules or your tenancy agreement. These should specify the exact times at which everyone must observe quiet hours at night, lunchtime, on Sundays and public holidays. If these regulations do not exist in your case, the rules of the noise protection regulations of the state immission control law of your federal state apply - in most cases, such as in Cologne, for example, a night's rest from 10 p.m. to 6 a.m. is prescribed. There is no statutory midday rest period. Nevertheless, according to the Equipment and Machine Noise Protection Ordinance, the use of loud machines in residential areas can be prohibited between 1 pm and 3 pm. You can fight for a rent reduction if the noise is generally so great that the tenant is massively and permanently restricted in the use of their rented property. However, the tenant must first write a notice of defects to their landlord. In this, the tenant must report the noise nuisance and at the same time request the landlord to do something about the noise within a reasonable period of time depending on the circumstances. There are various sources of noise nuisance. For example, the neighbour's children or pets can be a direct source of noise, as can the surroundings of the rented property. However, it must be decided on a case-by-case basis (BGH 15.02.2008, ref. V ZR 222/06) as to when the rental property is defective due to noise nuisance, as it always depends on the subjective perception of the person, so that the perception of a reasonable average person must be taken into account (BGH 20.11.1992, ref. V ZR 82/91). The guideline and limit values, which can be found in TA-Lärm or DIN 4109, for example, serve as a rough guide.

Noise pollution that is acceptable

If certain values are exceeded, there is not always a defect due to the noise of the rented property. For this reason, you should always consult a lawyer who will check for you whether the source(s) of noise constitute(s) a sufficient defect for me to reduce the rent. For example, if there is a restaurant when the tenant moves in, the tenant must accept the usual nuisance caused by such a restaurant. A defect in the rented property is usually excluded in such cases and a reduction in rent would not be possible. Annual events, such as public festivals or church bells, which are to be regarded as socially acceptable, also do not constitute a defect in the rented property. Similarly, typical traffic noise does not lead to a defect if it is generally in line with normal traffic noise (BGH 19.12.2012 Ref. VIII ZR 152/12). If it was not foreseeable for the tenant at the time the tenancy agreement was concluded that construction work would be carried out in the nearby neighbourhood in the future, the resulting noise nuisance does not lead to a defect in the rented property as soon as the landlord considers this noise to be insignificant and the tenant must therefore accept it without having any defence or compensation options of their own. However, such an insignificant nuisance does not exist if the legally prescribed limits are exceeded (BGH 29.04.2015 ref. VIII ZR 197/14, section 4 a).

Amount of rent reduction in the event of noise disturbance (orientation guide!)

The amount of the rent reduction depends on a number of factors, such as the length of time the defect has existed, which rooms of the rented property are affected and how severely the usability of the property is restricted. The calculation of the reduction therefore always depends on the individual case. The following case law can only serve as a guide.

If the braking noise of a lift exceeds the maximum permissible sound level according to DIN 4109, which is 30 dB (A), it can therefore be clearly perceived in the rented property. This would constitute a defect in the rental property and justify a rent reduction of 10% (LG Berlin 11 November 2010, ref. 67 S 241/08).

If the tenant signs the rental agreement with knowledge of the commercial use of the neighbouring buildings, he must generally expect that certain noises may emanate from these commercial activities, but he does not have to accept all noise nuisances. If knocking noises or noises from talking penetrate into the rented property at night, a rent reduction of 11% is permissible (LG Cologne 09.12.1986, Ref. 12 S 127/86). The Cologne Local Court also justifies a reduction of 10% of the monthly rent if the noise from a record shop is clearly audible in the flat above (Cologne Local Court 22 July 1992, ref. 207 C 164/91). In the case of nocturnal noise nuisance emanating from a discotheque with a sound level of more than 86 dB, the Cologne District Court affirmed a rent reduction of 30 % (AG Köln, 11.08.1977 - 155 C 5035/77).

It is not forbidden to play music in your own home, as this is part of your private living space and must be accepted by the other tenants. However, the musician must also observe the requirements of the house rules and the general peace and quiet at night. In individual cases, such noise nuisance can lead to a rent reduction, such as practising and playing electric guitar and drums with an amplifier at lunchtime and in the evening. In this case, a rent reduction of 5% was affirmed (LG Berlin 15.03.2011, ref. 65 S 59/10).

Other examples of defects in the surroundings of the rented property that can lead to a reduction in rent are as follows:

• • • Environmental toxins such as asbestos.
    • Vibrations that exceed the limit values specified as permissible in DIN 4150 Part 2.
    • Odours emanating from a nearby bakery or supermarket, for example.
    • Room temperatures due to inadequate heating performance or above-average temperatures due to solar radiation (str.).
    • Existence of a brothel in the neighbourhood and in the same rental property.
    • Official drug counselling centre in the neighbouring building.

If you are affected by a noise nuisance, you must report the defect immediately. If you wait any longer, you may lose your right to reduce the rent. Detailed and informative noise reports are also very helpful. If possible, with the exact type of noise, duration, extent and time (with date and time). If the landlord is aware of the noise problem, there is no need to report it. If the landlord claims that this defect was not reported, the tenant bears the full burden of presentation and proof that the defect was reported (BGH 05.12.2012 Ref. VIII ZR 74/12). You can also defend yourself against the tenant in the event of noise, for example by reporting an administrative offence in accordance with Section 117 OWiG or, if the noise nuisance comes directly from the landlord, by asserting a claim against him in accordance with Section 536a BGB.

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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Lawyers in Cologne provide advice and representation in tenancy law.