Berlin Regional Court, 06.04.2021, Ref.: 67 S 358/20
Tenants not only have rights, but of course also many obligations. These are set out in the tenancy agreement and the house rules. Most of the obligations stipulated by the landlord for the tenant serve to maintain and protect the property. This applies, for example, to cosmetic repairs. However, this often also applies to the prevention of mould.
Many tenancy agreements also contain specific provisions on ventilation. This is also permitted within certain limits. However, it can become problematic if the landlord gives incorrect instructions on ventilation, the tenant follows them and then claims a rent reduction due to mould. This is what happened in the case discussed here.
Facts
The plaintiff in this case was the tenant, the defendant was the landlord. The parties are in dispute over rent reduction and compensation.
Landlord had given the tenant an information sheet on correct ventilation
The defendant had given his plaintiff tenant an information sheet "on correct ventilation behaviour to prevent mould growth". . According to this information sheet, moisture almost always comes from the inside and must be regularly removed from the flat by sufficient ventilation.
Tenant reduces rent due to mould in summer
Nevertheless, mould began to form in the summer and the plaintiff demanded repayment of 25% of the rent paid and reimbursement of his expenses for the removal of the mould. The local court initially seised ordered the defendant landlord to pay. The action was successful at first instance. The defendant landlord appealed against this judgement.
Decision of the Berlin Regional Court
The Berlin Regional Court also followed the plaintiff's opinion and did not change the judgement of the Local Court. The plaintiff was entitled to a reduction of 25% of the gross rent in accordance with Section 536 (1) sentence 2 BGB.
The Berlin Regional Court also recognises the tenant's right to a reduction in rent
According to the expert's findings in the expert opinion obtained by the court, the mould infestation at issue was not attributable to construction defects. However, according to the convincing and comprehensible supplementary information provided by the expert at the hearing, it was clear to the chamber's conviction that the mould formation was the sole responsibility of the defendant, irrespective of any inadequate heating behaviour on the part of the plaintiff, which was negligible due to the formation of the relevant mould outside the heating period.
Expert confirms that the information in the information sheet was inadequate
The incorrect ventilation behaviour of the plaintiff, which was responsible for the development of mould in the summer months, was already the responsibility of the defendant, since a ventilation system based on the specifications of the information sheet "on correct ventilation behaviour to prevent mould formation" ventilation behaviour was inadequate according to the convincing findings of the expert.
The fact that the severe mould infestation at issue occurred in August when the defect was first reported in June 2018 and not during the heating period was decisive for the assessment. According to the expert's convincing explanations in the oral hearing, in the warmer summer months, in order to avoid mould growth in the areas in dispute, increased requirements for needs-based ventilation should be made in order to avoid an increase in the relative indoor humidity as the most important component for mould infestation according to the expert's explanation to a critical value according to the expert opinion. According to the comprehensible findings of the expert, this assumption can be attributed to the fact that the significantly higher absolute humidity of the outside air typically recorded during the day in summer could not contribute to the reduction of the room air temperature, which was in any case rather low due to the location, intended by the ventilation, instead of dehumidifying the room, ventilation during the day led to an increase in the relative humidity to the mould-critical limit range explained in detail in his expert opinion due to the penetration of the warmer, more humid air compared to the indoor air (cf. also Lorenz, NZM 2019, 394, 397). In response to questions from the court, the expert expressly did not limit this causal relationship to only exceptionally high summer outlier temperatures.
Therefore, the tenant cannot be accused of incorrect ventilation behaviour
According to these findings, the plaintiff could not be reproached for not having limited his ventilation behaviour in summer to the nightly ventilation required according to the expert's further information after the temperatures had cooled down. This had already been the case in view of the information sheet "on correct ventilation behaviour to prevent mould formation", which merely contains the blanket statement that the moisture that "with a few exceptions, almost always from inside the room air" must come "are regularly removed from the home by adequate ventilation". The expert had convincingly explained, with reference to the regular ventilation behaviour - confirmed by the plaintiff - which was considered to be the cause of the mould damage, even in the summer months, that no misconduct on the part of the tenant was discernible, as the information sheet incorrectly did not refer to the need to ventilate the property in line with the season or the outside temperature, which was not readily apparent to a layperson.
Insofar as the defendant invokes inadequate heating behaviour on the part of the plaintiff, contributory negligence (§ 254 BGB) cannot be assumed in accordance with the result found. According to the plaintiff's uncontradicted submission, the mould formation at issue here occurred in the summer. The fact that the heating behaviour had increased the mould infestation at issue was neither specifically submitted nor evident.
According to this result, it is irrelevant whether mould formation could have been permanently avoided at all by reasonable ventilation and heating behaviour, for which, according to the expert's explanations, in view of the building physics problems described, at least a more detailed reference to the ventilation behaviour to be specifically described for the flat would have been necessary, also in the sense of ventilation by cross-ventilation in line with requirements, at least outside the summer, while avoiding too frequent or prolonged ventilation.
The reduction rate of 25% of the gross rent awarded by the Local Court - not separately challenged by the appeal - was appropriate.
Source: Berlin Regional Court
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