Regional Court of Cologne, 24/02/2017, Ref.: 1 S 32/15
The use of the rented property inevitably includes certain signs of use and wear and tear caused by the tenant. Accordingly, Section 538 BGB stipulates that the tenant is not responsible or liable for changes or even deterioration of the rented property caused by the contractual use of the rented property.
§ 538
Wear and tear of the rental object due to contractual use
The tenant is not responsible for any changes to or deterioration of the rented property caused by use in accordance with the contract.
In this case, the landlord is therefore obliged to remedy the deterioration caused by normal contractual use at his own expense. However, if the tenant uses the rented property in a manner other than that for which it was intended and damage occurs as a result, the obligation to remedy the damage no longer lies with the landlord, but with the tenant.
Mould in the bathroom: a dispute between tenant and landlord
In this case, a tenant filed a lawsuit against her landlady because the bathroom of the rented flat was heavily infested with mould. The mould was noticeably only forming in the area above the tiled part of the wall, directly in the splash water area of the shower head. The tenant demanded that the landlady remove the mould, which led to the matter being brought before the court.
Examination by an expert
The court commissioned an expert to clarify the cause of the mould growth. The expert opinion came to the conclusion that structural defects could be ruled out as the cause. In particular, the ventilation in the bathroom was sufficiently dimensioned and functioned technically flawlessly. However, the expert found that proper ventilation could not prevent the wall above the tile level from regularly becoming damp from showering in the bathtub. This moisture could not escape completely even with proper ventilation.
Causal use by the tenant
The expert came to the clear conclusion that the mould formation was due to the way the bathroom was used. The plaintiff showered standing up in the bathtub, which meant that splashing water regularly reached the unprotected wall areas above the tiles. As these parts of the wall were not protected against moisture, the formation of mould was an unavoidable consequence of this type of use.
Decision of the Regional Court of Cologne
The Cologne Regional Court agreed with the expert's statements. It found that the bathroom was not designed for standing use of the shower in the bathtub. The tiling, which only reached half standing height, did not provide sufficient protection against the ingress of splashing water, which inevitably led to the wall areas above becoming damp and ultimately to the formation of mould.
Non-contractual use and exclusion of claims
The court came to the conclusion that the use of the bathroom by the plaintiff - in particular the standing shower in the bathtub - was in breach of contract. As the mould growth was solely due to this use and structural defects were excluded, the court ruled out any claims by the plaintiff for rectification of defects or rent reduction. The tenant was therefore solely responsible for the mould infestation.
Source: Cologne Regional Court
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