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<\/p>\nBrandenburg Higher Regional Court, 25 February 2014, Ref.: 3 U 154\/11<\/b><\/p>\n
The landlord is obliged to hand over the rental object free of material defects and defects of title in accordance with the contract. If the rented property has a defect at the time it is handed over to the tenant that cancels its suitability for contractual use, or if such a defect arises during the rental period, the tenant is exempt from paying the rent for the period in which the suitability is cancelled, Section 536 (1) BGB. However, the defect must be reported to the landlord immediately in accordance with Section 536 c (1) BGB.<\/p>\n
The tenant is responsible for presenting and proving the existence of a defect and the impairment of the suitability of the rented property after it has been handed over.<\/p>\n
However, the reduction is excluded if the tenant was already aware of the defect when the contract was concluded. If the tenant accepts a defective item although he is aware of the defect, he can only claim a reduction if he reserves his rights at the time of acceptance. This also applies in accordance with Section 543 (4) BGB to the tenant's right of cancellation in accordance with Section 543 (2) No. 1 BGB.<\/p>\n
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In the above-mentioned judgement, the Brandenburg Higher Regional Court dealt, among other things, with the validity of the extraordinary termination of the tenant, who had extended the existing tenancy agreement despite being aware of the defects.<\/p>\n
In 2000, the parties concluded a tenancy agreement for commercial premises for a period of four years. Three years later, the parties concluded an extension agreement and agreed that the tenancy would end on 28 February 2008.<\/p>\n
According to the defendant's submission, a large number of defects occurred during the rental period. Among other things, in 2001 there were complaints of considerable dampness in the walls with mould growth in the warehouse and the offices.<\/p>\n
These were not remedied despite the complaint. The defendant therefore terminated the tenancy without notice by letter dated 22 August 2006. On 31 October 2006, the defendant returned the rented property to the plaintiff.<\/p>\n
The plaintiff demanded payment of outstanding rent up to and including February 2008, the defendant counterclaimed for damages in the amount of \u20ac 600 and release of the rent deposit. 1,600 and release of the rent deposit.<\/p>\n
The regional court initially appealed to dismissed the claim. In response to the counterclaim, the plaintiff was ordered to pay \u20ac 455.89 plus pro rata interest and to release the rental deposit. The plaintiff appealed against this judgement to the Brandenburg Higher Regional Court.<\/p>\n
The court did not follow the opinion of the first instance and awarded the plaintiff the claim for payment of rent, while dismissing the counterclaim to the extent of the appeal.<\/p>\n
The tenancy was not terminated by the letter of termination dated 22 August 2008, but continued until the end of February 2008.<\/p>\n
The requirements established by supreme court case law for proving the grounds for termination in accordance with Section 578 (2) sentence 2 in conjunction with Section 569 (1) sentence 1 BGB had not been sufficiently proven by the defendant, who has the burden of presentation and proof in this respect in accordance with general procedural principles.<\/p>\n
Whether there is a significant risk to health is to be assessed solely on the basis of objective standards according to the current state of knowledge. A case-by-case assessment is necessary if the request for termination is based on health hazards which - as in this case in the form of a widespread mould infestation - are caused by indoor and environmental toxins.<\/p>\n
It had to be established that the substance impairing the use of the rented premises posed specific health risks for all users of the premises or at least groups of them.<\/p>\n
In order to be able to prove this, it will regularly be necessary to submit corresponding expert reports analysing and evaluating the contamination of the indoor air with environmental toxins or mould pores. In this context, however, it is not sufficient to merely point out the general, fundamental danger or mould for human health.<\/p>\n
The proof required according to this was lacking here. The defendant had only submitted a test report and a risk assessment from the environmental agency, which showed that the fungi in question could cause fungal infections.<\/p>\n
Such illnesses always depended on the individual body's defences as well as the exposure time and spore concentration in the room air, which in this case had not assumed a dangerous level for the defendant's employees.<\/p>\n
The fact that the plaintiff had the brickwork renovated in 2007 did not result in a reversal of the burden of proof or a secondary burden of proof on the landlord.<\/p>\n
The defendant should have found out what requirements the case law places on the termination of a tenancy due to health hazards and accordingly could have used the means provided by the case law in the context of an independent evidence procedure in order to be able to document the condition of the rented property before moving out with certainty. The legal misconceptions in this regard would not fall within the plaintiff's sphere of risk.<\/p>\n
The defendant was also not entitled to terminate the lease in accordance with Section 543 (2) sentence 1 no. 1 BGB. The right of cancellation was excluded in accordance with \u00a7 543 Para. 4 in conjunction with \u00a7 536b BGB if the tenant was aware of the defect in the rental property when the contract was concluded. \u00a7 Section 536b BGB also applies to a contract for alterations. The defects cited in the letter of cancellation were already known prior to the extension in October 2003.<\/p>\n
As the tenancy had not been effectively terminated by the defendant's notice of termination, it had continued until the subsequently agreed end of the contract. The plaintiff could therefore demand the rent owed by the defendant up to and including February, as the legal effect of Section 536 b BGB also extended to the right to reduce the rent in accordance with Section 536 BGB.<\/p>\n
Source: Brandenburg OLG<\/p>\n
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