Federal Court of Justice, 02.03.2011, VIII ZR 209/10
In principle, tenants can claim a rent reduction from the tenant in accordance with Section 536 (1) BGB if the rented property has a material defect or defect of title or if the rented property lacks warranted characteristics.
However, if the flat is defective or lacks warranted characteristics, the tenant must observe certain requirements so that the rent reduction cannot be legally challenged.
In this respect, the defect must be reported to the landlord immediately upon its occurrence. Without this notification of defects, the tenant has no right to have the damage rectified. The defect should be described as precisely as possible in the notification of defects.
In addition, the landlord should be informed that he is obliged to keep the flat in a contractual condition. In addition, a deadline should be set for rectifying the defect and it should be announced that the rent will be reduced by a certain amount until the damage has been rectified.
The tenant can reduce the rent vis-à-vis the landlord as soon as the defect occurs. The tenant therefore does not need to wait for the landlord to receive the notice of defect. As the rent is usually paid in advance, the tenant can also reduce the rent retroactively.
However, tenants often have particular problems determining whether a certain defect entitles them to a rent reduction and how high the rent reduction should be.
Courts define a defect as "a deviation in the actual condition of the rented property from that stipulated in the contract that is detrimental to the tenant".
The suitability for use in accordance with the contract must be significantly impaired. According to case law, a defect is insignificant if the defect is easily recognisable and can be rectified quickly with minimal resources.
According to case law, a contractually warranted characteristic is given "if the landlord indicates to the tenant by an express or tacit declaration, which has become part of the contract, that he intends to guarantee the existence of the characteristics in question and all consequences of their absence".
There are countless court rulings on rent reductions for a wide variety of reasons, particularly in the area of residential rents. For example, a faulty central heating system that leads to additional fuel consumption (MDR 1983, p. 229) or inadequate structural thermal insulation in living spaces (WuM 2006, p. 609) are recognised as faults.
In the above-mentioned decision, the BGH had to decide whether the tenant can claim a rent reduction if the area of a furnished rented flat falls short of the contractually agreed area by more than 10%.
FactsThe plaintiff was the tenant of a fully furnished flat owned by the defendant in Berlin. In the rental agreement, the size of the flat was stated as approx. 50 metres. However, the actual living space was only 44.3 metres. Due to the deviation in area of 11.5 %, the plaintiff considered a rent reduction corresponding to this deviation to be justified and demanded a partial repayment of the rent for the entire rental period in the amount of EUR 1,964.20 in a letter dated May 2009.
The defendant, on the other hand, was of the opinion that the furnishing of the flat had been taken into account in the basic rent, so that the rent was only to be reduced by a total of 736.58.
The plaintiff then brought an action before the local court, which upheld the claim in the amount of EUR 288.22 and dismissed the remainder of the claim. The appeal against this decision was dismissed by the regional court.
BGHThe BGH confirmed the plaintiff's view. A defect in the form of a deviation of the actual living space from the contractually agreed living space of more than 10 % entitles the tenant to a reduction in rent in the proportion in which the actual living space falls short of the agreed living space, even in the case of furnished rented flats.
The restriction on the use of the rented living space resulting from a shortfall in living space is not to be considered less because the furnishings required for household management can be fully accommodated in the flat despite the smaller living space.
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.
Lawyers in Cologne advise clients nationwide on tenancy law.