Duisburg-Hamborn Local Court, 15/03/2016, Ref.: 7 C 274/13
If moisture damage or mould occurs in the flat, the tenant is obliged to notify the landlord immediately. The so-called notification of defects in accordance with Section 536c BGB is an essential prerequisite for the enforcement of all other rights of the tenant, such as the rectification of defects, rent reduction, extraordinary termination and the assertion of further claims for damages.
However, the tenant should also report the mould to the landlord because otherwise he himself will be exposed to considerable claims for damages. In the Duisburg-Hamborn Local Court case discussed here, the tenant had not reported mould for a long time and it was only when the flat was handed over that the landlord became aware of the full extent of the mould infestation.
Facts of the Case:
The tenant had not reported mould to the landlord for years
The plaintiff, as landlord, is asserting claims for damages against the defendant, as tenant, arising from a residential tenancy that has since been terminated.
On 27 June 2005, the plaintiff's legal predecessor concluded a residential rental agreement with the defendant. The flat rental agreement was duly terminated by the defendant on 30.11.2012. A flat handover took place on 1 December 2012. At this handover appointment, the plaintiff discovered considerable mould infestation in the flat and confronted the defendant, who denied any responsibility for the mould infestation.
Landlord commissions an expert to assess the damage and sues the tenant
The plaintiff then commissioned an expert to determine the extent and cause of the mould infestation in the rented flat and to quantify the damage. In a letter from the plaintiff's lawyer dated 6 March 2015, the defendant was then unsuccessfully requested by the plaintiff to pay compensation. After the defendant failed to pay, the plaintiff sued the defendant at Duisburg-Hamborn Local Court for damages in the amount of EUR 3,720.00 plus EUR 706.80 VAT for the remediation of the wall surfaces affected by the mould in the living room, bedroom, bathroom and kitchen. In addition, he demanded compensation of EUR 630.00 plus EUR 119.70 VAT for dismantling the floor coverings and removing the adhesive residue. He also demanded the costs incurred by him for obtaining the expert's written report in the amount of EUR 2,013.55 as well as loss of rent of EUR 670.08 for the months of December 2012 to March 2013 (4 months with a monthly basic rent of EUR 167.52).
Judgement of the Duisburg-Hamborn Local Court:
Local court rules in favour of the landlord and sees claim for damages
The Duisburg-Hamborn District Court largely followed the plaintiff's opinion and ordered the defendant to pay damages in the amount of EUR 5,960.41 in accordance with Sections 280 (1), 535, 549 (1) BGB.
In this respect, the court came to the conclusion that the defendant had caused considerable mould growth in the flat he rented to the extent photographically documented in the expert opinion of 19 February 2013 and had thus culpably breached his secondary obligation as a tenant to use the rented property in accordance with the contract, which also includes the obligation not to damage the substance of the rented property.
Tenant had caused mould for years and not reported it
The defendant himself confirmed the presence of mould in the flat at the time he moved out during his informational hearing by the court and stated that there were black traces of mould in the living room and bedroom area as well as in the kitchen and bathroom. This had also been confirmed by the statements of the two witnesses, who had made their testimony credible, as it was vivid, true to life, free of contradictions and easy for the court to understand.
The expert's report was also coherent and comprehensible. The expert had presented the consequences and conclusions drawn from the connecting facts logically and without contradiction. The methodology used by the expert was not objectionable.
The doubts and objections raised by the defendant against the expert opinion would also not prevail.
Insofar as the defendant claimed that burst pipes and mains water damage had repeatedly occurred in the apartment building during his tenancy, which could be the cause of the moisture and mould damage, the expert stated that a possible burst pipe in the apartment building could theoretically explain the formation of mould. However, this presupposed that moisture had actually entered the flat rented by the defendant as a result of a burst pipe, i.e. it was not sufficient that a burst pipe had occurred somewhere in the apartment building. However, precisely this prerequisite of moisture entering the defendant's rented flat from outside could not be established in the present case, so that no further clarification was required as to whether a burst pipe or tap water damage had occurred in the property in the past.
Alleged burst pipe and leaking drainage pipe were ruled out as causes
Contrary to the defendant's opinion, a leak in the toilet drain pipe could also be ruled out as the cause of the considerable mould infestation in the flat. The expert stated that he had discovered the leak in the toilet drain pipe during his first inspection. At that time, a new toilet head had already been installed after the defendant had moved out. At his second on-site visit, which he had carried out, no more leaks had been detected. He therefore assumed that this leakage had been caused by the installation of the new toilet head after the defendant had moved out and had not yet been present during the period in which the defendant had lived in the flat.
Insofar as the defendant challenged the expert's findings on the cause of the mould formation on the grounds that an appropriate room temperature could not be achieved in the rented flat at night due to the night-time reduction of the heating system and that mould formation could only have been avoided if the flat had been excessively heated and continuously ventilated, these objections would also not prevail.
In this regard, the expert stated that, according to his long-term measurements of the indoor and outdoor air conditions as well as the surface temperature, the influence of the night-time reduction of the heating system on cold external components, such as window lintels in particular, had not shown any tendency to fall below the dew point with condensate failure as a result of normal use of the flat.
Even the possibility of utilising the building insurance does not exclude the tenant's obligation
The plaintiff's claim for damages was also not excluded because the plaintiff was obliged to make a claim against the building insurer and not against the defendant for compensation for the moisture damage that occurred in the flat. The defendant's argument to the effect that, in the event that he was slightly negligent in causing water damage to the kitchen sink, the plaintiff could, according to the case law of the Federal Court of Justice, only claim compensation from the building insurer and not from him, did not hold water. It could not be established that there was any tap water damage at all in the kitchen of the rented flat.
The plaintiff could therefore initially demand the amount of money required to remove the mould damage as compensation in accordance with Section 249 (2) BGB. The expert had estimated this amount in his report at EUR 3,610.00 net plus EUR 685.90 VAT. The court agrees with this convincing assessment of the expert.
Tenant must also bear the costs of the expert
In addition, the plaintiff could also demand compensation from the defendant for the necessary costs of commissioning the expert. This is because it was necessary for the plaintiff to commission an expert to determine the nature and extent of the mould damage in the rented flat, to determine its cause and the amount of the removal costs in order to prosecute the case appropriately. The defendant must reimburse these expert costs necessary for the appropriate prosecution as damages.
Insofar as the defendant declared for the first time in its statement of 29 February 2016 that it would offset an alleged deposit repayment claim in the amount of EUR 350.00 against the plaintiff's claim for damages, this submission and the offsetting pursuant to Section 296a ZPO should not be taken into account. This new submission and the offsetting declared for the first time would have taken place after the conclusion of the oral hearing. At the hearing on 2 February 2016, the parties were merely given the opportunity to comment in writing on the result of the taking of evidence. This did not include any new submissions on the matter. The defendant's submissions did not give rise to the reopening of the hearing.
However, the plaintiff had no further claim for damages against the defendant. For the dismantling of the floor coverings and the removal of the adhesive residues, the plaintiff could not demand the compensation of EUR 630.00 from the defendant. It had to be assumed here that the laying of the carpeting had served to establish the contractual condition. A flat without flooring is not to be regarded as being in accordance with the contract. In this respect, there is no obligation to remove the carpet in accordance with Section 546 (1) BGB at the end of the contract.
The plaintiff would also not be entitled to payment of loss of rent in the amount of EUR 670.08 for the months of December 2012 to March 2013 against the defendant. If the landlord claims that he has suffered a specific loss of rent due to the return of the rental property in an improper and unrentable condition, he must demonstrate when, to whom and at what rent he could have rented the rental property if the rental property had been returned in a proper condition (see BGH, NZM 2000,183; OLG Düsseldorf, judgement of 15 December 2005, ref. 1-10 U 80/05). This would not be the case here, as the plaintiff had not provided any information in this regard.
Source: Duisburg-Hamborn Local Court
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