The Federal Supreme Court (BGH) has ruled that a tenant's claim against the landlord for the removal of defects during the rental period is not subject to the statute of limitations.
The plaintiff has been a tenant of a flat in a block of flats owned by the defendant since 1959. The attic floor above the plaintiff's flat had been converted for residential purposes in 1990. In October 2006, the plaintiff demanded in writing that the defendants provide sufficient sound insulation for the attic flat. In 2007, she had a procedure for the preservation of evidence carried out, during which it was determined that the sound insulation was insufficient. With the lawsuit, the tenant demanded an improvement of the impact sound insulation in the attic flat.
The defendant landlords claimed that the claim was time-barred. The action was unsuccessful before the district court. The district court upheld the claim on the plaintiff's appeal.
The defendant'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 plaintiff's rental use was impaired by the insufficient sound insulation. Civil Senate of the Federal Court of Justice (BGH), which is responsible for residential tenancy law, ruled that the plaintiff's rental use was impaired by the insufficient sound insulation and that she was therefore entitled to demand that the necessary sound insulation be provided pursuant to section 535 sub-section 1 sentence 2 of the German Civil Code (BGB). This claim is not time-barred. The tenant's claim for removal of a defect as part of the claim for maintenance of use is not subject to the statute of limitations during the rental period. The landlord's main obligation under Section 535 (1) sentence 2 BGB is a permanent obligation directed towards the future. This obligation is not exhausted by a one-time act of handing over the leased property, but is aimed at maintaining the leased property in a condition fit for use during the entire lease term. Such a contractual permanent obligation cannot become time-barred during the existence of the contractual relationship, because it constantly arises anew during this period.
Judgment of the Federal Supreme Court of 17 February 2010 - VIII ZR 104/09
Lower courts:
AG Düren, judgement of 4 November 2008 - 46 C 303/08
Aachen Regional Court, judgement of 9 April 2009 - 2 S 333/08
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
