Cologne Local Court, 1 March 2013, Ref.: 208 C 99/09
In tenancy law disputes, the question of who bears the burden of proof in court proceedings plays a particularly important role.
The tenant is generally responsible for presenting and proving the existence of a defect in the rented property. This means that the tenant must present and prove the facts from which the defect arises.
If, for example, the flat is contaminated with mould, the tenant can prove the visual impairment caused by the mould by means of photos or witnesses.
The odour pollution caused by the mould can in turn be proven by an odour report and the health impairment caused by the mould can be proven by an indoor air report (if certain types of mould are present in the indoor air in quantities that are hazardous to health).
If the tenant has provided such evidence, the landlord in turn has the burden of presentation and proof that the cause of the defect does not originate from his area of responsibility, but from the tenant's area of control, for example if the mould formation was caused by the tenant's inadequate ventilation behaviour.
In the Cologne District Court case mentioned above, the question of whether the plaintiff tenants had sufficiently proven whether the coating of pipes for cold and hot water with epoxy resin by the landlord was detrimental to the plaintiffs' health played a role.
Facts of the Case The two plaintiffs lived in a flat owned by the defendant in a residential park for a total monthly rent of € 1,012.92.
The defendant intended to renovate the water pipes by coating the inside of the pipes for cold and hot water with epoxy resin from February 2009. This refurbishment had already begun in other flats in the residential park.
However, the plaintiffs opposed this plan, so that the defendant had to ask the plaintiffs to acquiesce by writing to a lawyer, among other things. After the pipes had been lined with epoxy resin, the plaintiffs demanded that this epoxy resin coating be removed, as in their opinion the renovation had been carried out incorrectly.
The system would not comply with Section 17 (1) sentence 1 of the Drinking Water Ordinance and the generally recognised rules of technology stated therein; although the epoxy resin indisputably fulfilled the requirements of the epoxy resin guideline, it was indisputable that further requirements, such as those in accordance with DVGW worksheets W 270 (A) W 545 and W 548, were missing.
Epoxy resins had already caused contamination, odour and taste impairments. A health clearance certificate from the health department of the city of Cologne was also missing.
Due to these circumstances, the current condition is not in accordance with the rental agreement.
The defendant, on the other hand, took the view that there was no defect and no health risk here. In view of the fact that the requirements of the epoxy resin guideline and the former coating guideline were indisputably fulfilled, it did not matter whether the procedural rules according to the DVGW worksheets were fulfilled, so that the question of health impairment depended solely on the result. In this respect, the plaintiffs' submission is pure speculation.
Cologne Local Court: After expert opinions had been obtained on the basis of an order to take evidence dated 19 June 2009 and 20 June 2012, the Cologne Local Court ruled that the action to remove the epoxy resin coating was unfounded.
A defect within the meaning of Section 536 BGB had not been proven by the plaintiffs, who had the burden of proof in this respect.
In this respect, the plaintiffs would have had to prove a deviation of the actual condition of the rented property from the condition owed under the rental agreement, which would have cancelled or significantly restricted the usability.
This would have been the case if the epoxy resin used had had harmful or hazardous effects on health or if the material used had released substances in contact with water in concentrations that were higher than unavoidable according to the general rules of technology or if it had impaired human health or changed the odour and taste of the water contrary to the protection provided for in the Drinking Water Ordinance in accordance with Section 17 (1) of the Drinking Water Ordinance.
This would also not result from the expert reports prepared or from the fact that the (formal) requirements in accordance with DVGW work and information sheets W 270 (A) W 545 and W 548 were not fulfilled, as this would not per se lead to an impairment of suitability for use, as these are merely formal requirements. In this respect, the plaintiff, who is obliged to provide evidence, should have submitted that such microorganisms had formed in a concentration and intensity relevant to the risk.
The expert opinion of 5 October 2006 submitted by the plaintiffs to the Biesigheim Local Court was also inappropriate, as it dealt with a different epoxy resin with the designation YZ, which incidentally was also not included in the positive list of the epoxy resin guideline.
The newspaper articles and other opinions expressed by third parties also submitted by the plaintiffs would not play a significant role in influencing the proceedings.
Source: Cologne Local Court
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.
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