Regional Court of Cologne, 21 October 2020, Ref.: 17 O 273/19
If the rented property has a defect, the tenant can assert claims to rectification of defects, claims to a reduction in rent and rights of retention. However, the tenant must also support the landlord in ensuring that the defects are rectified. If the tenant prevents the landlord from remedying the defect without justification, the landlord can no longer invoke the reduction in accordance with the principles of good faith pursuant to Section 242 BGB from the point in time at which the defect would have been remedied if the tenant had not been prevented from doing so.
In the Cologne Regional Court case discussed here, the tenant in a commercial tenancy was entitled to a reduction and retention due to a burst water pipe. However, when the tenant sabotaged the implementation of the removal measures, the landlord cancelled the tenancy after a while and filed an action for eviction and restitution.
1. facts of the case
a. Burst water pipe in a restaurant in Cologne
The plaintiff is asserting eviction and payment claims against the defendant arising from and in connection with a commercial lease agreement.
The plaintiff is the owner of the commercial rental property in dispute, consisting of a restaurant with a guest room including a draught beer lift, 2 staff toilets, staff shower, staff changing room, kitchen, cold store, 2 customer toilets (ladies and gentlemen), storage cellar, beer cellar, drinks cold store/cellar.
The monthly agreed basic rent was most recently EUR 2,250.00 plus an advance payment of EUR 1,000.00 for operating costs and a rent surcharge of EUR 30.00, i.e. a total of EUR 3,280.00 per month. The rent is to be paid monthly in advance, at the latest by the third working day of each month. § Section 6 of the rental agreement contains the following provision:
„Tenants may only offset counterclaims or assert a right of reduction or retention against all claims of the Landlord arising from the tenancy if the counterclaims or the right of reduction or retention are recognised by the Landlord or have been legally established. Offsetting or the assertion of a right of reduction or retention must be notified to the Lessor in writing one month in advance.“
During the night of 1 August 2018 to 2 August 2018, a water pipe burst in the rental property, causing faecal water to enter the rental unit in dispute, which was no longer usable as a result. In particular, the false ceiling installed there by the defendant was damaged.
b. Property management informs the tenant, the tenant ignores the requests
The property management informed the defendant on 4 October 2018 that he would have to claim for damage to his inventory and the loss of business through his own insurance and that the plaintiff's building insurer would be responsible for the damage to the roof and the compartment as well as for drying, disinfecting and cleaning the property. In particular, the defendant must first have the false ceiling installed by him removed so that the cleaning company to be commissioned by the plaintiff can clean the property.
On 9 October 2018, the property management once again asked the defendant to contact them as soon as the false ceiling had been demolished so that the basic cleaning of the property could be ordered and carried out. The defendant replied to this on 10 October 2018, stating that he had contacted a lawyer in order to have the matter settled by his insurance company. He also confirmed that the damage assessor commissioned by the plaintiff had contacted him.
On 30 January 2019, the defendant informed the property management company that he would prefer to carry out the cleaning work himself, which the property management company refused to do. On 11 January 2019, T GmbH, which had been commissioned by the plaintiff, arrived on site with a site manager and six employees to dismantle the ovens, refrigerated counters, lighting and ventilation in the damaged area and then begin the renovation work. The defendant refused to carry out the work, whereupon the cleaning company withdrew.
On 24 January 2019, the property management company again sent the defendant the contact details of the cleaning company T with the request to make an appointment for basic cleaning.
c. Landlord cancels tenant's contract due to payment arrears of EUR 23,390.50
In a letter dated 24.05.2019, the property management company commissioned by the plaintiff, C & Co. GmbH, the property management company commissioned by the plaintiff, terminated the tenancy agreement with the defendant in writing, setting a deadline of 31 May 2019, and based this termination on a payment arrears totalling EUR 23,390.50. C & Co. GmbH requested the defendant to pay an amount of EUR 3,958.90 in a further letter dated 19 June 2019, setting a deadline of 26 June 2019.
The defendant subsequently carried out cleaning and repair work on his own and reopened the restaurant he operated in the rented property at the end of July 2019.
The plaintiff claims that it could have made the rented property available to the defendant fully cleaned and disinfected again by February 2019 at the latest if the defendant had not obstructed the cleaning work.
The plaintiff is of the opinion that the defendant breached its obligations by not carrying out the work it owed and thereby prevented the delay in the damage repair measures. The defendant is also excluded from any right of reduction or retention on the basis of the provision in § 6 of the rental agreement.
d. Landlord files an action for eviction with the Cologne Regional Court.
The plaintiff therefore filed an action for eviction and payment with the Regional Court of Cologne and requested that the defendant vacate the rented property consisting of a restaurant with a guest room including a beer lift. The defendant was ordered to vacate the rented property consisting of a restaurant with a restaurant room including a draught beer lift, 2 staff toilets, staff shower, staff changing room, kitchen, cold store, 2 customer toilets (ladies and gentlemen), storage cellar, beer deposit cellar, drinks cold store/cellar and to pay the plaintiff an amount of EUR 3,958.90 plus interest of 5 percentage points above the respective base interest rate since the pendency of the action.
2nd decision of the Regional Court of Cologne
a. The plaintiff's claim for eviction is justified.
The Cologne Regional Court has now ruled that the action is justified with regard to the claim for eviction pursued with the application under 1). The plaintiff had a right to extraordinary termination of the commercial lease in dispute pursuant to Section 543 (1), (2) No. 3 a) BGB.
Pursuant to Section 543 (1) sentence 1 BGB, either party may terminate the tenancy without notice for good cause. According to Section 543 para. 2 no. 3 a) BGB, good cause exists in particular if the tenant is in arrears with the payment of the rent or a not insignificant part of the rent for two consecutive dates. It is undisputed that the defendant did not pay the monthly rent for February 2019 to June 2019 on time.
b.The eviction claim is also not precluded by any right of the defendant to refuse performance
The defendant could also not assert a right to refuse performance with regard to rent payments for this period. The defendant would no longer be entitled to a right to refuse performance with regard to the rent payment from February 2019 because he had refused to have the defects rectified by the cleaning company commissioned by the plaintiff (see BGH, judgement of 12 May 2010 - VIII ZR 96/09). It is contrary to the purpose of the right to refuse performance pursuant to Section 320 BGB if the creditor exerts pressure on the debtor to fulfil his contractual obligations on the one hand, but on the other hand does not enable the debtor to fulfil these obligations by refusing performance - in this case in the form of the rectification of defects.
The right to withhold performance (Section 320 (1) sentence 1 BGB) fulfils the purpose of encouraging the landlord to remedy the defect by exerting pressure and can therefore no longer be exercised in good faith, but ceases to apply if this purpose is not achieved or can no longer be achieved. Therefore, the right of retention ends not only when the defect is rectified, but also if the tenant does not grant the landlord or the persons commissioned by the landlord to inspect and rectify the defects access to the premises or otherwise refuses to tolerate the rectification of the defects (see BGH, judgement of 12 May 2010 - VIII ZR 96/09).
c. No further claim for payment by the landlord
However, even if the plaintiff's submission were to be taken as undisputed, the application under 2) was unfounded, as the court had already pointed out in its order of 15 June 2020.
The plaintiff itself argues that if the defendant had cooperated properly, the rented property would have been "can be made available completely cleaned and disinfected as early as February 2009". In this respect, it is not clear on what the plaintiff would like to base the payment of rent for the months of October 2018 up to and including January 2019. The rental property was indisputably unusable during this period due to the burst water pipe that occurred.
In this context, the plaintiff could also not successfully rely on the provision in § 6 of the rental agreement. The corresponding clause in this form as a general business condition does not stand up to a content review in accordance with Sections 307 et seq. BGB, even in commercial transactions. The provision makes the admissibility of offsetting even with undisputed counterclaims dependent on their recognition by the plaintiff. The clause thus places it at the plaintiff's discretion to refuse to recognise even undisputed counterclaims of its contractual partners and to limit its right of set-off to legally established counterclaims. Such a severe curtailment of the counterclaims of its contractual partners puts them at an unreasonable disadvantage contrary to the requirements of good faith and is ineffective in accordance with the case law of the Federal Court of Justice (see BGH, judgement of 01 December 1993 - VIII ZR 41/93 -).
Conclusion: If you assert your right to reduce the rent, remedy defects or withhold payment due to rental defects, you should support the landlord in remedying the defect, otherwise you may be threatened with cancellation.
Source: Cologne 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
