Cologne Local Court, 27.01.2011, Ref. 210 C 107/10
The owner of a house must ensure that the pavements and entrances to their house can be walked on without danger. This is particularly relevant in winter when there is snow and ice. However, they do not necessarily have to personally clear the snow and grit in icy conditions. Instead, they can also transfer this duty to others, e.g. tenants. The owner then only has to check that the obligation is being fulfilled. However, the risk of liability, such as someone slipping and injuring themselves, is borne by the tenant once the duty has been transferred.
Sometimes the obligation to provide winter maintenance is only generally laid down in the house rules.
In the judgement below, the Cologne Local Court (AG Köln) ruled that an obligation to provide winter maintenance does not become part of the tenancy agreement if it is only included in the house rules. This applies all the more if it can be found under the heading "Cleaning and maintenance".
Facts of the Case:
The plaintiff is a tenant, the defendant is the landlord.
In this case, the parties are in dispute about a tenant's obligation to keep pavements and house entrances clear of snow and ice and to grit them in icy conditions.
The tenant has lived as a tenant in the ground floor flat of a house in Cologne since 1964. In 2008, the landlord enters into the existing tenancy agreement as the new owner of the building. The tenancy agreement refers to the house rules.
The house rules stipulated that ground floor tenants were obliged to clear snow
In turn, under the heading "Cleaning and maintenance", in clause 12, under the heading "Snow and ice", a duty of the ground floor tenants is stipulated, according to which they must keep the pavements and entrances to the building free of snow and ice and grit them in icy conditions. The plaintiff also fulfils this obligation.
In 2009, the tenant informs the landlord that he is no longer able to take on the winter maintenance due to health problems. He submits a medical certificate stating that snow clearing poses an acute danger to the tenant.
The landlord then informs the tenant that she continues to uphold the tenant's obligation to provide winter maintenance.
Tenant sued the landlord for a declaration that he was not obliged to provide winter maintenance
The tenant then sues and applies for a declaration that he is no longer obliged to carry out the winter maintenance since his letter to the landlord. He believes that the provision in the house rules is not effective. In any case, he is to be released from the service due to his age and state of health.
The landlord applies for the claim to be dismissed.
Judgement of the Cologne Local Court
The court considered the winter service regulation to be invalid
The Cologne District Court rules in favour of the tenant. It considers the action to be well-founded, as the provision in the house rules is not effective. With his letter to the landlord, he has been released from the obligation.
In the opinion of the court, the obligation to carry out winter maintenance under the heading "Cleaning and maintenance" came as a surprise and was therefore not an effective part of the contract. It clarifies that this does not result from the regulations on "general terms and conditions control" (Sections 305 et seq. BGB), as these did not exist in 1964.
The winter service regulation was surprising and therefore ineffective
Rather, it assumes that the contract is invalid, as the mention of the obligation to provide winter maintenance under the heading "Cleaning and maintenance" is contrary to good faith in accordance with Section 242 BGB. It refers to the provision now enshrined in Section 305c BGB, according to which surprising provisions in the General Terms and Conditions do not become part of the contract.
In addition, the court clarifies that the landlord may in principle transfer its duty to ensure traffic safety (i.e. to clear and grit the pavement in winter) to the tenants. If this is done, the landlord only has a duty of inspection. The tenant, on the other hand, has full legal responsibility once the duty has been transferred and may be liable.
For the transfer to be effective, it must be clearly and unambiguously regulated in the tenancy agreement
However, in order to transfer this duty to ensure traffic safety, it must be clear and unambiguous to the tenant from the tenancy agreement that they now have this duty. This is not clear from the reference to the house rules, in which the obligation is stipulated under the heading "Cleaning and maintenance".
Rather, the transfer of the obligation should have been clearly and unambiguously agreed in the tenancy agreement itself. The court justified this with the high liability risk for the tenant, for whose transfer the house rules are not the right place.
Finally, it explains that the fact that the tenant has in fact assumed the obligation in the past does not change the invalidity of the clause. Just because he has always carried out the winter maintenance does not mean that he will have to do so in the future. By writing to the landlord, he has made it clear that he will no longer carry out the winter service and has ended his de facto assumption of the obligation.
As a result, the plaintiff was vindicated and no longer has to carry out the winter road clearance service in future.
Source: AG Cologne
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