Tenancy law: Tenant's claim to rectification of defects is not subject to a limitation period.

Case Facts

In this case, the plaintiff, a tenant, was in dispute with the landlady about the flooring of the terrace of a rented 1.5-room flat. The landlady had replaced the original tiled floor of the terrace, which made up around a third of the total area of the flat, with a bankirai floor (wooden floor). The tenant did not agree with this replacement and demanded that the original tiled floor be restored. After the landlord did not comply with the tenant's request, the tenant filed a lawsuit. After the first decision by the Berlin-Neukölln district court, the Berlin regional court had to decide the case.

Decision of the Regional Court of Berlin

The Berlin Regional Court ruled in favour of the plaintiff and confirmed that she was entitled to restoration of the original tiled floor in accordance with Section 535 (1) sentence 2 BGB. The court found that the replacement of the tiled floor by the landlord constituted a deviation from the contractually owed condition of the rented property. It did not matter whether the new bankirai floor had increased the value of the flat. The decisive factor was that the original condition, as agreed in the rental agreement, no longer existed.

Entitlement to rectification of defects and limitation period

In accordance with the case law of the Federal Court of Justice (BGH), the Regional Court found that the tenant's claim to rectification of defects is part of the claim to maintenance of the leased property and remains time-barred for the entire duration of the lease. The court justified this by stating that the landlord's obligation under Section 535 (1) sentence 2 BGB is a permanent obligation that is not limited to a one-off act of letting. The landlord could therefore not successfully invoke a limitation period.

Maintenance obligation of the landlord

The court pointed out that, in accordance with Section 535 (1) sentence 2 BGB, the landlord may alter the rented property insignificantly and without loss of value, but is obliged to maintain the original condition of the rented property as far as possible or to restore it after defects have been rectified. This applies in particular if the changes affect an essential component of the rented property, such as the floor covering of the terrace in the present case.

Importance of the terrace for the rental property

In the court's opinion, the terrace, which made up around a third of the total area of the flat, played a decisive role in the character of the rented property. The original tiled floor contributed significantly to the character of the terrace and was a defining part of the rented property. Therefore, the tenant's claim for restoration of the tiled floor was justified.