Berlin Regional Court, 10.04.2015, Ref.: 63 S 318/14
According to § 293 BGB, the creditor is in default if he does not accept the performance offered to him. However, a creditor is only in default if the debtor is allowed to perform in the manner offered. The debtor must therefore offer performance at the right place and at the right time. In case of doubt, he may submit his offer before the due date in accordance with Section 271 (2).
According to Section 294 BGB, an actual offer must therefore be made. In other words, the performance must actually be offered to the creditor in the manner in which it is to be effected. The offer must be made in such a way that the creditor does not need to do anything other than access and accept the performance.
If the creditor rejects a service as defective, he is not in default of acceptance if the service actually contains a defect.
According to Section 295 BGB, a literal offer by the debtor is sufficient if the creditor has declared that he will not accept the performance or if an action by the creditor is required to effect the performance, in particular if the creditor has to collect the item owed.
In the following case, the Regional Court points out in the decision on the appeal against the judgement of the Local Court of Schöneberg - 107 C 492/13 announced on 28 August 2014 that the creditor is also in default of acceptance if he refuses to take measures to remedy the defect until the decision on the pending appeal proceedings. In this respect, a literal offer by the debtor instead of the actual offer is sufficient to trigger the default of acceptance.
It also clarifies that decorative repairs only represent an enrichment of the landlord in accordance with Section 812 BGB if they can also be used by the landlord. This is the case if they are carried out at the end of the tenancy so that the landlord can utilise the decorating success for the subsequent tenancy.
Berlin Regional Court: The plaintiff's admissible appeal is unfounded. The plaintiff is not entitled to reimbursement of the costs for the cosmetic repairs carried out in accordance with Section 812 (1) BGB in the amount of EUR 3,696.40.
The plaintiff was not obliged to carry out the measures. No agreement had been made in the rental agreement in deviation from § 535 Para. 1 BGB according to which the traces of use were to be repaired by the tenant. Such an agreement does not arise from § 13 no. of the rental agreement, which merely represents a due date provision without establishing an obligation on the part of the tenant. § Section 13 no. 2 of the rental agreement does not establish such an obligation either.
The defendants had not gained anything in terms of enrichment from the work carried out by the plaintiff during the current tenancy.
A claim for compensation for cosmetic repairs carried out without legal grounds exists if the decorating success brought about by the tenant corresponds to what the landlord could use in the course of re-letting.
However, this only applies to cosmetic repairs that the tenant carries out at the end of the tenancy and which therefore do not benefit the tenant himself.
However, the tenant had arranged for cosmetic repairs to be carried out during the current tenancy, from which essentially only she herself benefited.
Even if the repairs were necessary, the tenant would not be entitled to a claim for unjust enrichment following the rectification of such a defect even if the requirements of Section 536a (2) BGB were not met.
It was not apparent that the performance of cosmetic repairs pursuant to Section 536a (2) No. 2 BGB was necessary to maintain or restore the condition of the rented property or that the defendant was in default with the performance of cosmetic repairs pursuant to Section 536a (2) No. 1 BGB.
Due to a declared set-off with the remaining rent claims of the defendant in accordance with § 389 BGB, the plaintiff could also not demand the repayment of the deposit in the amount of EUR 1,522.90.
The rent was also not to be reduced any further than the local court had found.
The complaint against the counterclaim is unsuccessful. The local court had rightly awarded the defendants rent claims totalling EUR 4,108.54 for April 2011 to October 2012.
A higher reduction than that taken into account by the district court was not justified.
It is true that the water stain in the chamber is a detrimental deviation from the target condition and therefore a defect. However, in view of the intended use for parking purposes, there is no restriction of the intended use that exceeds the materiality threshold within the meaning of Section 536 (1) sentence 3 BGB.
The chamber assessed the inadequate thermal insulation in the same way as the local court, with a reduction rate of 10 % as appropriate, even if the flat had a temperature of up to 50 °C in summer and 16 °C in the bathroom in winter. The submission was also too generalised in this respect, therefore no impairment of use could be established that would justify a higher reduction rate than 10 %, as awarded by the local court for the winter months.
A reduction of 1 % is appropriate for the loud fan in the guest WC. It is questionable whether the materiality threshold pursuant to Section 536 (1) sentence 3 BGB has even been exceeded here. Although stronger noises from the fan would constitute a defect, they would not lead to an impairment of use that would even justify a higher reduction than that assumed by the local court.
The mould formation reported by the plaintiff was not comprehensible and, moreover, the impairments were only insignificant within the meaning of Section 536 (1) sentence 3 BGB. The plaintiffs have only described light grey or yellowish discolourations, namely 20 to 40 spots, each the size of a cent. This does not allow the conclusion to be drawn that black mould forms in damp conditions and is not objected to in the notice of defects.
Therefore, only a visual impairment was to be assumed, which was below the materiality threshold within the meaning of Section 536 (1) sentence 3 BGB.
Nor did the water damage of 1 March 2010 give rise to a claim for a reduction in price, as it only represented a minor impairment of use below the materiality threshold. According to the plaintiff, the wall edge of the wallpaper in the children's room was curling and beginning to come loose, which did not justify a reduction.
The limitation of the reduction until July 2009 was justified, as the plaintiff had been in default of acceptance with the rectification of defects since August 2009 by refusing to take measures to rectify the defects from August 2009. It had repeatedly stated that it would not tolerate any work until the decision in the pending appeal proceedings. It expressly confirmed this again in its letter of 17 September 2010.
Due to this declared attitude of refusal, an actual offer of the work by the defendant was no longer necessary. A literal offer to remedy the defect was sufficient to justify the delay.
Source: Berlin 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.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email at or send an email to info@mth-partner.de info@mth-partner.de
Lawyers in Cologne provide advice and representation in tenancy law.