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1. Weimar Local Court: WEG - No direct equalisation claim against co-owners

In its final judgement of 13 February 2019 (case reference: 5 C 410/18), the Weimar Local Court ruled that a co-owner of a condominium is not entitled to direct compensation for disbursed costs against his co-owners without a resolution of the condominium.

This also applies to a two-owner WEG. Exceptions would only be conceivable in the event of a tied vote if it can be assumed from the outset that an owners' meeting cannot lead to a resolution.

In this case, the majority owner had the roof renovated without prior agreement or resolution and then later demanded payment of his share of the costs from the co-owner.

Published in: Property ownership 13/2019, S. 865 / 866 (kommentiert auf S. 837)

2. Regional court confirms: Vibrations & impact noise are common in an old building

By order dated 3 April 2018 (GZ: 63 S 44/18), the Berlin Regional Court confirmed the judgement of the Berlin-Spandau Local Court dated 16 January 2018 (GZ: 12 C 229/16).

The findings of the local court based on personal impressions (on-site inspection & usage simulation) that the noise effects are normal were not objectionable.

The 63rd Civil Chamber of the Regional Court also made a comprehensible assessment:

Certain vibrations and impact noise are common and typical due to walking on typical old building wooden beam ceilings and therefore do not constitute a defect.

The tenant's application for legal aid for an appeal was therefore rejected.

3. Vibrations are common in an old building

In its judgement of 16 January 2018 (GZ: 12 C 229/16), the Berlin-Spandau district court dismissed the tenant's claim that there was significant noise nuisance solely due to foot traffic in the flat above following the installation of laminate flooring. Following its own on-site visit with a detailed usage simulation and explanations from an acoustics laboratory, the court emphasised that (certain) vibrations caused by walking on typical wooden beam ceilings in old buildings are common and typical and therefore correspond to the nature of the flat.

During the on-site visit, walking noises in the rooms and simulated falling noises were noticeable and vibration noises were partially perceptible. However, a defect in the flat of the plaintiff tenant was to be denied, as the old building flat was rented in this condition (completely inadequate soundproofing, low noise level and vibrating floors and ceilings due to the construction).

Furthermore, the tenant had also reduced the rent due to alleged soiling of the stairwell.

The court was unable to detect any saliva stains in the unchanged (generally clean) stairwell during the on-site visit. Even if the various minor impurities present had been saliva stains, a claim for a reduction in rent pursuant to Section 536 BGB is ruled out, as even then it would have been an insignificant defect that did not impair the residential value.

Berlin, 26. Januar 2018

4. Regional court confirms: Even in the absence of full sanity, a tenant who is constantly making noise can be given notice of termination - only legal incapacity excludes termination

Provided that the tenant, who may not have been fully responsible, was not in a permanent state of pathological disturbance that precludes her free determination of will, she can be legally terminated due to her behaviour (e.g. constant night-time noise & insults from the landlady & the neighbours).

The case: The Spandau district court (Gz: 3 C 122/13, in: GE 2014, 525) sentenced the defendant - possibly not fully responsible - tenant to vacate the flat in a judgement dated 7 March 2014 due to regular night-time parties, loud music and verbal abuse, documented by detailed noise logs from the neighbours. It emphasised that the constantly noisy tenant had committed a breach of duty that made it unreasonable for the landlord to continue to adhere to the tenancy agreement (Sections 543 (1), 569 (2) BGB). The court emphasised that even disturbances lasting only a few minutes at night or early in the morning can startle all other tenants and prevent a good night's sleep. In the proceedings at first instance, legal aid was refused due to the unsuitable and always only blanket legal defence. An eviction deadline in accordance with Section 721 ZPO was rejected by the local court with reference to the unreasonableness of further waiting for the landlady and the neighbourhood. The tenant would have had sufficient time to look for another flat due to the legal aid proceedings and the default proceedings. The conclusive and detailed claim dated back to a year earlier, to March 2013. The proceedings were considerably prolonged by the tenant by means of an application for bias, an appeal in the legal costs proceedings and an escape into default.

The ruling: On appeal, the regional court ultimately confirmed the Spandau district court's eviction ruling in its ruling of 4 March 2015 (GZ: 67 S 152/14). However, the district court initially had doubts about the tenant's legal capacity, granted legal aid and decided on her psychiatric-forensic assessment on the question of whether she had legal capacity within the meaning of Sections 104 et seq. BGB (German Civil Code) or whether she was capable of litigation within the meaning of §§ 51 f ZPO (Code of Civil Procedure). The 42-page expert opinion clearly stated that, despite her illnesses, the tenant was not in a permanent state of pathological disorder that precluded her free determination of her will. In the appeal proceedings, the tenant unsuccessfully invoked her alleged absence due to hospitalisation at the time of the disorders and corresponding confirmations of inpatient treatment. However, the court was convinced by detailed evidence provided by the landlady that the tenant had always discontinued her intended inpatient treatment and had returned to the flat in a massively disruptive manner (see the judgement of the Berlin Regional Court of 17 October 2014, in: GE 2015, 323, on the need for detailed information on the type, location and time of behaviour-related disturbances).

However, the regional court granted an eviction period of almost ten months in accordance with Section 721 ZPO, as it was taken into account when weighing up the interests that the tenant, who was in serious health difficulties, also had greater difficulties in finding alternative accommodation on reasonable terms due to her financial situation. It was also justified that, above all, in order not to place an excessive burden on the defendant tenant's mental health, she should be given more time to find accommodation than would otherwise be the case for single tenants. Contrary to the district court, the regional court considered a long eviction period as appropriate for parents with children.

Berlin, 20. März 2015

5. cancellation of a constantly noisy tenant

The Spandau Local Court (case reference: 3 C 122/13) recently ruled that a tenant who is constantly making noise and may be mentally ill can be given legally effective notice of termination on the basis of detailed noise reports from the neighbourhood. The court emphasised that an effective termination is also possible for people who may not be fully responsible.

The case: Shortly after moving into the flat a few years ago, the tenant began to disturb her neighbours by regularly partying at night and playing loud music. After warnings from the landlady, relative peace and quiet returned for a few months until the disturbances started all over again. When the last warnings no longer had any effect, the landlady declared the extraordinary termination of the tenancy without notice due to massive disturbance of the domestic peace. The termination was renewed due to continued massive disturbances and also insults from the neighbours after the notice of termination with the statement of claim, on which the eviction judgement is based.

The judgement: In a judgement dated 7 March 2014 - which is not yet legally binding - the Spandau district court, referring to the house rules and the detailed noise logs of the neighbours, found that the constantly noisy tenant had committed a breach of duty that made it unreasonable for the landlord to continue to adhere to the tenancy agreement (Sections 543 (1), 569 (2) BGB). The court emphasised that even disturbances lasting only a few minutes at night or early in the morning sometimes startle all other tenants and prevent a good night's sleep. The regular, almost weekly loud parties and the loud playing of music were considered to be very significant both in terms of their number and intensity. The defendant tenant had unsuccessfully invoked gaps in her memory with regard to the detailed noise logs. The medical certificate submitted did not help either, as the court emphasised that an effective termination is also possible for persons who may not be fully responsible. This principle is based on the ruling of the district court of Wedding from 21 June 2013 (case no.: 7 C 148/12, in GE 16/2013, p. 1070 - 1072).

Furthermore, the court rejected an eviction deadline in accordance with Section 721 ZPO, as the neighbourhood affected could no longer be expected to wait due to the noise nuisance and insults. On the contrary, the tenant would have had sufficient time to look for another flat following the (unsuccessful) legal aid proceedings and the default proceedings.

Berlin, 21. März 2014
Veröffentlicht im Grundeigentum
Nr. 8/2014, Seite 501, Urteilsabdruck Seite 525

6. correct dunning with rent account statements

The time for timely payment of rent is usually specified in the tenancy agreement and has been regulated by law in Section 556 b (1) BGB since the 2001 Tenancy Law Reform Act: The rent must be paid at the beginning of the rental period, by the 3rd working day at the latest. If the rent is not paid, the tenant is generally in default without the need for a payment request / reminder (§ 286 Para. 2 No. 1 BGB). It should be noted that the rent due date may be postponed due to weekends and public holidays. In accordance with § 193 BGB, a ‘Saturday’ is not a working day, so that the rent is not due until the following Monday (e.g. Saturday 3 November 2012 led to the rent becoming due on Monday 5 November 2012).

Nevertheless, it is customary and often economically advisable to send a reminder for outstanding rent payments beforehand. Some tenants then pay or contact their landlord to arrange payment in instalments.

Incidentally, current case law regularly classifies consistently unpunctual or incomplete rent payments as a not insignificant breach of duty in accordance with Section 573 (2) No. 1 BGB and entitles the tenant to terminate the tenancy agreement following a prior qualified warning (see LG Berlin of 6 December 2011, GE 5/2012, 343; BGH of 14 September 2011, GE 1/2012, 57). As in the case of a notice of termination, the receipt of a warning letter by the tenant must be proven if necessary. Therefore, suitable witnesses (e.g. caretaker, tradesman) should place the letter in the letterbox without an envelope (so that the witnesses can take note of the contents) and note the date and time on a copy of the letter including their signature. Landlords themselves are usually excluded as witnesses to the service of the letter in any court proceedings, as they are a party to the proceedings. Landlords therefore always require suitable accompaniment for ‘court-proof’ service.

When rent payment reminders are sent, many landlords / property managers send so-called rent account statements (overviews of the rental payments and the rent target) together with the standardised letter from the landlord or property manager software.

These overviews represent accounting ‘chronological event tables’. However, this can be problematic for some reminders due to a possible limitation period. The rental account statement should therefore be attached to a detailed reminder letter for information purposes only if there is a great deal of confusion and payments were made some time ago.

Particularly in the case of tenants who pay irregularly or who reduced the rent without authorisation a long time ago, rent account statements should not be sent as reminders without comment. This is because the statement is then used to assert a claim that was made some time ago and is subject to the defence of a three-year limitation period in accordance with Section 195 BGB.

If, for example (as recently happened in practice), a rent reduction amount from 2007 is asserted in a standardised manner in 2012 by means of a rent account statement, then this claim is time-barred after 31 December 2010 (see section 199 (1) no. 1 BGB) and becomes unjustified when the objection is raised. The landlord is thus asserting an unjustified claim, which can generally be successfully rejected by the tenant in court as part of a negative declaratory action (action to establish that a claim does not exist) in accordance with Section 256 (1) ZPO.

However, rent account statements support the precise identification of outstanding rent payments and the traceability of claims. Particularly in court reminder proceedings, for example, there is an obligation to precisely describe the asserted claim in accordance with Section 690 (1) No. 3 ZPO.

In principle, the individual monthly rent payment claims must be broken down in detail (see BGH, judgement of 17 November 2010, case reference: VIII ZR 211/09). It can be assumed that the tenant has lost track of his rent payments and must be able to understand which rent he has not paid and when by means of a reminder notice alone. The court must also be able to clearly understand the exact rent arrears and their composition in the contentious proceedings. Detailed rent account statements are also generally useful here when preparing the lawsuit.

In order to avoid the threat of the statute of limitations, current payments should always be offset against the oldest claims if possible. According to § 366 Para. 2 BGB, the oldest and most uncertain debt is repaid in the case of several claims (see e.g. OLG Düsseldorf of 26 November 2009, para. 8, Ref.: I-10 U 42/09, 10 U 42/09). This presupposes that the payments are made without specification, i.e. for example without specifying a payment term, e.g. if only ‘rent’ is generally specified as the purpose of the transfer (but not, for example, ‘rent for January’, as this would mean that a payment within the meaning of Section 366 (1) BGB has been specified).

In the above example of the rent reduction (€ 100.00) from 2007, the next indefinite rent payment would be offset against the remaining amount of the rent reduction. This should be explained in the reminder letter (e.g. ‘We have offset your last indeterminate payment of 15 January 2008 in the amount of € 600.00 in accordance with § 366 Para. 2 BGB against the rent not paid in full “December 2007”, resulting in a residual claim in the amount of € 100.00 for January 2008’ and continuing accordingly, the residual claim is always ‘postponed’ to the last month of a payment).

The rental account statement can be attached to the detailed reminder letter for information purposes only. The possible defence of the statute of limitations in the more standardised / automated dunning process should be effectively countered in this way. Experience has shown that the greater effort is worthwhile.

However, it is generally advisable not to ‘tolerate’ even minor payment arrears over longer periods of time. Rather, the claims should be asserted at an early stage (possibly together with a lawsuit / dunning procedure for any additional payment amounts from the operating cost statement, etc.). If the amount in dispute does not exceed € 600.00, so-called ‘small claims proceedings’ can often be concluded quickly by the local courts without an oral hearing if the parties agree. Occasionally, however, timely prior agreements with defaulting tenants (e.g. instalment payment agreements etc.) can also lead to success.

Berlin, 08. November 2012
Veröffentlicht im Grundeigentum
Nr. 24/2012, Seite 1676
(Kurzreferat der Juris GmbH erfolgt)

 

Selection of judgement notices only:

1. Landgericht Berlin, Beschlüsse vom 04. August und 29. September 2015 - 63 S 112/15: Bestätigt: Kein Mietmangel bei geringer Luftbelastung mit Asbestfasern. Veröffentlicht in: Grundeigentum 03/2016, S. 161, 197

2. Amtsgericht Schöneberg, Teil- und Schlussurteil vom 12. März 2015 – 2 C 86/14: Kein Mietmangel bei geringer Luftbelastung mit Asbestfasern. Veröffentlicht in: Grundeigentum 03/2016, S. 161, 197

3. OLG Naumburg, Beschluss vom 17.04.2013 - 12 W 36/13: Keine Termingebühr bei Klagerücknahme im schriftlichen Vorverfahren. Veröffentlicht in: NJW-RR 14/2013, Seite 896

4. AG Berlin-Mitte, Urteil vom 06. September 2012 - 27 C 30/12: Mieter hat keinen Anspruch auf eine Sicherung vor Einbruch, die über das bei Vertragsabschluss vereinbarte Maß hinausgeht. Auch eine leicht verzogene doppelflügelige Wohnungseingangstür ist vertragsgemäß. Veröffentlicht in: Grundeigentum 19 /2012, Seite 1325 - 1326

Sowie:
Die beiden Enquete-Kommissionen des Deutschen Bundestages zur SED-Diktatur: ein kurzer Abriß, in: Recht und Politik, Nr. 36 (2000), S. 62 - 62