Requirements for a modernisation notice

The Federal Court of Justice (Bundesgerichtshof) has issued a decision on the requirements for the modernisation notice required under Section 554 (3) of the German Civil Code (Bürgerliches Gesetzbuch - BGB).

The plaintiffs, together with other persons, are owners of an apartment building in Munich. They intend to install balconies on the west side of the house. They claim from the defendant, who is the tenant of one of the flats concerned, the toleration of this installation. To this end, they notified the defendant in writing of the construction measures to be carried out, including "installation of heating and electrical installation in the affected wall area", the date of the planned start of construction, the planned construction period of 6 weeks and the amount of the expected rent increase. At the same time, they informed the defendant that a construction period of five days plus painting work after a drying period of one week was estimated for the work within the flats. The action for acquiescence to the construction measures pursuant to section 554 (2) of the German Civil Code (BGB) was successful in the lower courts.

The tenant's appeal against this decision was unsuccessful. The VIII. Civil Senate of the Federal Court of Justice, which is also responsible for residential tenancy law, ruled that the purpose pursued with the modernisation notice does not require that every detail of the intended measures be described in the notice and that every effect be communicated. The notice must provide the tenant with sufficient knowledge of the way in which the flat will be changed by the modernisation and how it will affect the future use of the flat and the rent to be paid. For this it is sufficient if the notice enables the tenant, who knows the structural conditions of the flat, to get a realistic picture of the intended structural measures. In the present case, the letter of notice met these requirements, so that the tenant had to tolerate the modernisation measures.

Judgment of the Federal Supreme Court of 28 September 2011 - VIII ZR 242/10

Lower courts:

AG Munich - Judgment of 15 October 2009 - 472 C 13274/09;

LG Munich I - Judgment of 23 June 2010 - 15 S 22014/09

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law 2011

Attorney at Law Michael Ullrich, LL.M. (Information Law)

E-mail: info@goldberg.de

 

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