Augsburg Local Court, 16.01.2017, Ref.: 17 C 4796/15
Section 535 of the German Civil Code (BGB) regulates the content and main obligations of a tenancy agreement. According to this, the landlord is obliged by the rental agreement to grant the tenant the use of the rented property during the rental period. The landlord must also provide the tenant with the rented property in a condition suitable for use in accordance with the contract and maintain it in this condition during the rental period. The tenant, on the other hand, is obliged to pay the contractually agreed rent.
If the use of the rented property is impaired by a defect within the meaning of Section 536 BGB for which the landlord is responsible, the tenant is entitled to have this defect rectified. A defect exists if the tenant can no longer use the rented property as usual or as contractually agreed. Furthermore, the tenant can also reduce the gross rent appropriately.
Facts of the Case:
Tenant demanded measures against pigeon defence
The plaintiff seeks the installation of pigeon spikes or an equivalent measure to eliminate the disturbance caused by pigeon droppings.
The plaintiff is the tenant of a flat on the 5th floor consisting of two rooms, a bathroom, a cellar compartment and a balcony. The defendant is the landlord. The block of flats in which the plaintiff's flat is located is six storeys high and has a flat roof with a two-stage upstand on which solar panels are installed.
Tenant could no longer use the balcony due to pigeon droppings
From spring 2015 and increasingly from August 2015, the plaintiff had more and more problems with pigeon droppings on his balcony, so that he was no longer able to use it. He therefore asked the defendant to remove the disturbance caused by the pigeons. However, the defendant only installed plastic trenches on the balcony railing, which did not lead to any improvement in the pigeon problem. The plaintiff has been reducing the rent since August 2015.
Landlord sees the pigeon problem as normal for the area
The plaintiff claims that the pigeon problem is related to the solar panels on the roof, as the pigeons nest here. The defendant claims that the pigeon problem in the urban area is customary and acceptable. Furthermore, the nuisance is only minor.
Judgement of the Augsburg Local Court:
The court ruled in favour of the claim. The plaintiff was entitled to the installation of a roof edge on the flat roof of the house or an equivalent measure.
The Augsburg District Court considered the pigeon problem to be a defect
The claim arises from Section 535 (1) sentence 2 BGB. According to this, the landlord is obliged to provide the rented property in a condition suitable for contractual use and to maintain it in this condition during the rental period.
The contractual condition of the flat is deemed to exist if it is suitable for normal or contractual use. In addition to the granting of use, this also includes protection against disturbances, at least insofar as these fall within the landlord's sphere of risk. If use in accordance with the contract is restricted or completely cancelled, this constitutes a defect in accordance with Section 536 (1) BGB. If the residential value is impaired due to the numerous pigeons, this is generally to be accepted by the tenant as typical of a large city. However, something different applies if the influx of pigeons is caused by a measure that can be influenced by the landlord, such as the façade design.
Because of the solar system, there were more breeding sites on the roof
In the present case and according to the expert witnesses heard in the proceedings, the increased presence of pigeons is due to the fact that they find good breeding grounds and protection from predators between the solar panels on the flat roof. Furthermore, the balcony was no longer usable due to the pigeon droppings and the associated health risks, meaning that a defect could be assumed.
As the circumstances for the defect fall within the defendant's sphere of risk, the defendant is obliged to remedy the fault. This was also possible and reasonable for him, § 275 BGB.
Source: Augusburg Local Court
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