Federal Court of Justice, 10 November 2010, Ref.: VIII ZR 306/09
Pursuant to Section 536 (1) BGB, tenants can claim a rent reduction from the tenant if the rented property has a material defect or defect of title or if the rented property lacks warranted characteristics. These characteristics also include the size of the flat or individual rooms. However, the assurance of this characteristic is often contractually waived.
Facts of the Case:
The size of the flat was specified in the rental agreement with reservations
The tenant (defendant) concluded a rental agreement with the landlord (plaintiff), which included the following content: "The following rooms are rented [...]: [...] the size of which is approx. 54.78 m². Due to possible measurement errors, this information does not serve to define the object of the lease. The spatial extent of the rented property is rather determined by the specification of the rented rooms."
The actual area of the apartment differed from the contractual area
After the tenant discovered a discrepancy between the actual number of square metres and the contractually "agreed" number, she reduced the rent. The landlord then sued the tenant.
Judgement of the Federal Court of Justice
Federal Court of Justice ruled that no binding size had been specified in the rental agreement
The BGH did not consider a defect leading to a reduction in rent to exist because the specification of the size of the flat in the parties' rental agreement was not to be regarded as a binding agreement on the quality of the property. Rather, the parties had expressly stipulated that the specification of the number of square metres was not intended to define the rented property, but rather that the spatial scope of the rented property would result from the specification of the rented rooms.
Source: Federal Court of Justice
You can find a free rent reduction calculator here.
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, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.