Berlin Regional Court, 23 February 2015, Ref.: 18 S 132/14
If a landlord has rented residential or commercial space evicted without a legally binding eviction order, he is committing a prohibited offence of usurpation. This applies even if the landlord would actually be entitled to the eviction.
The tenant who has suffered damage as a result can then demand that the landlord restore possession by way of an interim injunction and also demand that the vacated items be returned.
However, this applies not only to the eviction of rented rooms, but also to other measures that disturb the tenant's exclusive possession of the flat.
In the case discussed here, the Berlin Regional Court had to rule on an appeal against the decision of the Local Court, which had prohibited the landlord from adding a balcony to the tenant's flat.
Situation: Planned balcony construction without the tenant's consent
In this case, the appellant and defendant in the injunction was the landlord of a flat. She planned to add a balcony to one of her rented flats. She initially tried to obtain the tenant's consent. After the tenant refused to give his consent, the landlord nevertheless commissioned a building contractor to build the balcony.
Temporary injunction by the tenant against balcony construction
The tenant objected to the planned balcony construction and obtained a temporary injunction from the Charlottenburg district court, which stopped the construction. The landlord then lodged an appeal with the Berlin Regional Court to contest this injunction.
Judgement of the Berlin Regional Court: Disturbance of possession due to balcony construction
The Berlin Regional Court confirmed the decision of the Charlottenburg District Court and ruled that the tenant was being unlawfully disturbed in his property by the balcony construction. The court emphasised that it was not decisive whether the tenant also had possession or co-ownership of the external façade. The interference with the tenant's sole ownership of his flat was sufficient, as the balcony changed the appearance of the flat and caused visual impairment.
Visual impairment and practical disadvantages of the balcony
The court also stated that the addition of the balcony would change the tenant's view and that there was a risk that leaves and dirt could accumulate on the balcony, which was difficult to access. This impairment was unreasonable, even if the balcony was not used directly.
Comparison with thermal insulation: No obligation to tolerate
The landlord argued that the balcony construction was comparable to the installation of thermal insulation, which tenants would have to tolerate. However, the court rejected this argument. Thermal insulation does not represent a comparable visual or practical impairment as a balcony. Therefore, the tenant did not have to tolerate the construction of the balcony. The general rule that tenants have no right of defence against visual changes to the building also did not apply in this particular case, as the balcony directly adjoined the tenant's flat and changed its appearance.
Conclusion: Unlawful personal authority of the landlord
Finally, the court ruled that the construction of the balcony without the tenant's consent constituted unlawful interference, as there was no legal title of acquiescence.
Source: Berlin Regional Court
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