Local Court of Giessen, judgement of 19.01.2021, file number 39 C 114/20
The landlord sued his tenant for eviction and surrender of the flat as well as for reimbursement of the legal fees she had incurred.
Facts
Mandatory need to install fire alarms
The landlord wanted to retrofit smoke detectors in a newly purchased rental property, in rooms where there were previously no smoke detectors. The landlord therefore wrote to his tenant suggesting two dates for retrofitting. The tenant did not respond.
The landlord's lawyer issues a warning
The landlord then contacted a lawyer, who drafted a letter in which he warned the tenant for not allowing the installation of smoke detectors and for not reporting defects in the rented property, as the window in the attic was leaking. The tenant also stored old items and junk from her former business in the attic and in two basement rooms. The lawyer also warned about this storage, as well as the many different objects standing around in the entrance area and in the courtyard. In the reminder, three dates were proposed for the installation of the smoke detectors and the repair of the attic window. In addition, a deadline was set for the removal of the objects in the courtyard and entrance area. The tenant was also informed of renewed behaviour in breach of contract and the consequences of termination of the tenancy. In addition, the building site supports in the cellar, the cellar stairs and the house electrics would also have to be replaced. The tenant was asked to provide further dates for this.
Tenant refuses to install fire alarms and repair work
The tenant contacted a tenants' association. The association wrote a reply to the landlord's reminder. In this letter, the installation of smoke detectors was not considered necessary, as there is a smoke detector in every room. In addition, the window in the attic was a room that was not heated and therefore there was no possibility of mould forming. The tenant did not consider it necessary to renovate the cellar or the building electrics either.
Landlord cancels without notice
The landlord then terminated the tenant's contract without notice with a notice period until the middle of the following month on the grounds of non-compliance with important obligations, such as agreeing an appointment to combat the mould or to prevent possible damage to the masonry of the building. In addition, the landlord's lawyer once again referred to the warning and the consequences described therein with regard to behaviour in breach of contract. The property was not vacated and surrendered within the deadline set by the plaintiff. After the tenant failed to respond, the landlord cancelled the tenancy again on the grounds already mentioned.
Landlord sues tenant for eviction and surrender of rented flat
The landlord claims that due to the leak in the attic window, only clear signs of mould or traces of moisture on the wall are visible. In addition, the necessary renovation work in the cellar is to ensure a resilient and stable cellar, which means that the installation of new supports and the repair of the unsafe staircase are of great importance. The inspection of the house electronics was required by law. In addition, the house was intended for living in and not for storing objects. The house was covered with cardboard boxes everywhere, which even made access to the rental property and individual rooms difficult, as the landlord had been informed by the district chimney sweep. The landlord therefore sued his tenant for eviction and surrender of the rented property and the assumption of the costs incurred by his legal representation.
The tenant requested that the action be dismissed on the grounds that the cancellation was invalid. The cellar is supported by a stable steel beam that has been there for 75 years. The renovation of the cellar was therefore not necessary. In addition, the window in the attic, which is not a living space, is sealed and only condensation water flows down the wall and there are no recognisable traces of damp. The house's electrics were perfectly adequate and posed no danger. And the cardboard boxes in the house would not obstruct access to the rented property or individual rooms.
Judgement of the Local Court of Gießen
The Giessen Local Court dismissed the landlord's claim.
The action was dismissed on the grounds that the reasons given in the first letter of termination were not complete and that there were no good cause for termination without notice. All statements regarding the condition of the cellar and its possible instability and the associated danger were not to be taken into account.
Breach of the duty of disclosure and care
Failure to report the alleged defect in the skylight would not constitute grounds for termination. The duty of care does include a duty of notification, but only if there is a risk to the rented property. There was therefore no breach of the duty of notification and care. A defect in the window was not apparent. An expert had inspected the water stains and no mould or resulting structural damage could be detected. The design of the window merely led to the formation of condensation and thus to traces of water run-off. Accordingly, there was no good cause for termination without notice in the failure to report a non-existent defect.
The storage of objects and boxes by the tenant is not sufficient grounds for termination without notice. A tenant is absolutely free to use the rented property or space as they wish. The tenant's behaviour would have to be in breach of duty and the storage would have to disturb the peace of the house or attack the substance of the rented property. The tenant lives alone in the rented property and the standing around of boxes cannot affect the substance of the house. A tenant is therefore completely free to deliver the flat. Commercial use of the living space also does not constitute grounds for termination without notice.
Lack of co-operation by the tenant
The tenant's lack of co-operation therefore does not justify extraordinary termination. Termination by the landlord due to a breach of contractual duties of acquiescence by the tenant does constitute a reason. However, this was not evident in the present case, as the tenant had already installed the smoke detectors beforehand, this had probably also been communicated and the deadlines given to the tenant did not even include a five-day lead time. Thus, in the opinion of the court, the tenant's willingness was evident. In addition, there was no evidence of a specific risk to the building.
The subsequent new cancellation was invalid due to the reasons already mentioned, which were not contained in the letter.
The landlord therefore has no claim to eviction and surrender of the rented property. The reimbursement of the pre-judicial costs shares the fate of the main claim.
Source: Gießen Local Court
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