Berlin Regional Court, 08.12.2016, Ref.: 67 S 276/16
The latest edition of the Energy Saving Ordinance (EnEV) has been in force since 1 May 2014. This is an important intermediate step on the way to achieving the EU targets, according to which only low-energy houses are to be built from 2021. The German government also aims to achieve a largely climate-neutral building stock by 2050, a topic that has been on everyone's lips for several years and which affects both owners and tenants. Tenants must tolerate the modernisation measures and then expect a possible rent increase.
Facts of the Case:
Tenants had rented terraced house from landlord
The defendant tenants in the underlying proceedings had been tenants of a terraced house in a listed small building complex since 1987. The tenants had a gas heating system installed in 1992 at their own expense. In the rental agreement, which had been concluded with the previous owner, it had been agreed under Section 6 (1) that the landlord was authorised to make structural changes and repairs, which were necessary to avert imminent danger, without the consent of the tenants.
The rental agreement had given the tenants extensive options for making an extension
Measures that are not necessary but nevertheless expedient may be arranged by the landlord in accordance with Section 6 (2). However, only if they would only have an insignificant impact on the tenant or if the tenant agrees to these measures. In addition, the tenants took over a veranda that had already been added to the rear of the house by the previous tenant due to another provision in the tenancy agreement.
In her lawsuit, the new landlord demanded that the tenants be ordered to remove the extension and the gas heating system and to tolerate extensive modernisation and repair work.
Decision of the Berlin Regional Court
Regional court ruled that the tenants did not have to remove the extension
The Berlin Regional Court rejected all requests from the new owner and landlord. As the former landlord had made it clear in the tenancy agreement that he was in agreement with the extension, the veranda did not have to be removed for this reason alone.
The gas heating system was also authorised by the previous landlord
The gas heating system has been in the house for more than 24 years and it can also be assumed that the previous landlord authorised this installation, which he never objected to. Furthermore, it should be taken into account that according to the rental agreement, the heating of the house is the sole responsibility of the tenant. It was also not recognisable that the landlord was impaired by the installation of the heating system. The provision of the Energy Saving Ordinance (EnEV) also does not stand in the way, as boilers installed after 1 January 1985 may only no longer be operated after 30 years.
The landlord could also not demand that the modernisation measures be tolerated
In addition, the new landlord could not claim that the tenants had to tolerate the announced and extensive modernisation and repair work. The provision in Section 6 of the tenancy agreement, which had been agreed with the previous landlord and would also bind the new landlord, precludes it from invoking the statutory provision. According to the overriding tenancy agreement, the tenants would only have to tolerate modernisation and repair measures that were necessary.
In contrast to the statutory provision, which only requires necessity, Section 6 (1) of the tenancy agreement is to be understood as meaning that, without the tenant's consent, only those measures are permitted which are essential to ensure the continued existence of the leased property and which absolutely exclude any delay. According to Section 6 (2) of the rental agreement, purely expedient modernisation measures that are useful can only be carried out as soon as the resulting impairments remain insignificant. In the present case, this was not the case, as the measures would take several months. In addition, the planned modernisation measures would increase the associated rent by over EUR 1,680.
It would also not help the landlord to invoke a possible obligation to retrofit the building for energy efficiency in accordance with the provisions of the Ordinance on Energy-Saving Thermal Insulation and Energy-Saving Systems Technology in Buildings (EnEV). As is known, the tenancy agreement must be interpreted in this respect in a supplementary manner. Accordingly, the tenants would only have to tolerate measures for which the landlord had previously tried unsuccessfully to obtain an exception or exemption from the competent authority in accordance with the EnEV and for which there was at least a concrete risk that the authority could impose regulatory measures. In the opinion of the court, these exemption requirements were not met in the present case.
Source: Berlin Regional Court
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