Local court Eilenburg, 23.02.2021, Ref.: 14 C 468/20
Facts
Tenant undertakes to repair damage through a representative in the handover protocol
The plaintiff in this case was the landlord, the defendants were the tenants of a flat. The tenancy agreement stipulated that the defendants were obliged to return the flat in a clean condition and without damage. The defendants did not fulfil this obligation. The lack of cleaning and the damage were recorded in a handover protocol dated 31 July 2019 when the flat was returned.
Judgement of the Local Court of Eilenburg
The handover protocol constitutes an acknowledgement of debt that binds the tenant
The Eilenburg Local Court has now ruled that the handover protocol constitutes a declaratory acknowledgement of debt within the meaning of Section 781 BGB.
An acknowledgement of debt is a contract by which the existence of an obligation is recognised. It can be structured as a constitutive acknowledgement of debt, in which a new independent obligation is established. However, it can also be a declaratory acknowledgement of an existing obligation and exclude for the future all defences of the debtor with regard to this obligation that he knew or should have known when the acknowledgement was concluded.
This categorisation is based on interpretation. A handover protocol when a tenant moves out can constitute a declaratory acknowledgement of debt, at least insofar as the tenant additionally undertakes to remedy defects at his own expense.
By signing the authorised representative's signature on the handover protocol, the defendants had undertaken to bear the costs of repairing the listed damage. The fact that the owner was to commission the removal of the damage did not contradict this. According to the interpretation from the recipient's point of view, however, this was not intended to establish an independent liability of its own, but rather to confirm the existing damage and the obligation to bear the costs for this under the tenancy agreement. This confirmation shows that the property was not returned without damage.
The issue of the acknowledgement of debt was also covered by the power of attorney
The authorised woman was also able to effectively submit the declaratory acknowledgement of debt.
The content and scope of a power of attorney must be interpreted primarily on the basis of the perspective of the third party to whom the power of attorney is presented and the circumstances of the individual case. If the tenant of a flat authorises a person to accompany and carry out the handover of the flat and to sign the handover protocol, this logically also includes the confirmation of defects and the obligation to rectify these. The handover of the flat includes the entire process from the identification of the defects to the agreement on their possible rectification. Any restriction of the power of attorney with regard to the rectification of defects or an obligation to bear the costs must therefore be clearly stated therein. According to its wording, the power of attorney covers the handover of the flat as such. This is precisely emphasised by the paragraph "This authorisation can be revoked at any time and is only valid for the handover of the flat. It does not include any other authorisations." confirmed, because it refers to the previous sections, in which the signing of the handover protocol is also mentioned.
However, the amount of damage was not recognised in the acknowledgement of debt
However, the declaratory acknowledgement of guilt of 31 July 2019 does not include an acknowledgement of the amount of damage.
Such an acknowledgement only excludes objections by the debtor that were known to him at the time the acknowledgement of debt was made or that he should have been aware of. Neither the defendants nor the authorised representative could have known at the time of submitting the acknowledgement which method of removal the plaintiff would choose and what costs this would incur. The repair and replacement work had not yet been commissioned at the time the acknowledgement was submitted on 31 July 2019.
Source: Eilenburg Local Court
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