Rent reduction due to undercutting of the flat size

The Federal Court of Justice (BGH) has ruled that a rent reduction due to a deviation of the actual living space from the living space stated in the tenancy agreement by more than 10% cannot be considered if the parties have clearly stipulated in the agreement that the specification of the square metre figure does not serve to determine the rental object.

The defendant is the tenant of a flat of the plaintiff in Potsdam. The size of the flat is stated in § 1 of the tenancy agreement:

"The following rooms are rented out ...: The flat in the attic on the right consisting of 2 rooms, 1 kitchen, bathroom, hallway for use as living space, the size of which is approx. 54.78 m². Due to possible measurement errors, this information does not serve to determine the subject matter of the lease. The spatial extent of the rented object rather results from the indication of the rented rooms."

The monthly rent payable amounted to €390 plus an advance on operating costs of €110. The plaintiff demanded payment of rent in arrears and an additional claim from the statement of operating costs for the year 2006. The defendant invoked a reduction in rent due to a shortfall in space and, in addition, declared a set-off against the claim with an alleged claim for repayment of overpaid rent. In support of its claim, it argued that the actual size of the flat was only 41.63 m². On the basis of an expert's report, the Local Court took as a basis an actual living space of 42.98 m².

The district court considered the reduction to be justified in principle and therefore only granted the claim in a small amount. In response to the plaintiff's appeal, the court of appeal denied a reduction in rent due to a shortfall in living space and ordered the defendant to make further payments.

The defendant's appeal against this was unsuccessful.

The VIII. Civil Senate of the Federal Court of Justice (Bundesgerichtshof), which is also responsible for residential tenancy law, ruled that in the contractual arrangement given here, a defect leading to a reduction of the rent due to a deviation in living space of more than 10% did not exist because the specification of the size of the flat in the parties' tenancy agreement was not - as is otherwise regularly the case - to be regarded as a binding agreement on quality. Rather, the parties expressly stipulated that the specification of the number of square metres did not serve to determine the subject matter of the lease, but that the spatial extent of the rental object was to be determined by the specification of the rented rooms. In this respect, there is no deviation in the area justifying a defect.

Judgment of the Federal Court of Justice of November 10, 2010 - VIII ZR 306/09
Previous instances:
AG Potsdam - Judgment of October 6, 2008 - 24 C 293/07
Potsdam Regional Court - Judgment of October 29, 2009 - 11 S 200/08

Source: Press release of the BGH

Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)