The Federal Court of Justice has ruled that, in the absence of a special contractual provision, a tenant cannot expect his or her flat to have sound insulation that exceeds compliance with the DIN regulations in force at the time the building was constructed.
The defendants are tenants of a flat owned by the plaintiffs in an apartment building in Bonn which was built in 2001/2002. The landlords claimed rent arrears for the months April 2006 up to and including December 2007 totalling € 1,701. The defendants had reduced the rent by this amount (ten percent of the gross rent), among other things, because of defects in the impact sound insulation of their flat to the flat above.
The Bonn Local Court allowed the action. On appeal by the tenants, the Bonn Regional Court dismissed the action. The Regional Court assumed that the rent was reduced by at least ten percent of the gross rent pursuant to section 536 (1) of the German Civil Code (BGB) because the flat was defective due to insufficient impact sound insulation. The expert had had a footfall sound measurement carried out and had found that the requirements of DIN 4109 (1989) were met. However, this was purely standard sound insulation, which generally did not correspond to average quality.
The landlords' appeal against this decision was successful. The VIII Civil Senate of the Federal Court of Justice, which is also responsible for residential tenancy law, denied a defect. Civil Senate of the Federal Court of Justice denied a defect of the flat due to insufficient impact sound insulation. As tenants, the defendants could not expect more than compliance with the DIN 4109 standard on sound insulation applicable at the time of the construction of the building.
If - as in the case decided - there are no contractual agreements on the condition of a flat, the tenant can expect that the rooms rented by him have a standard of living that is usual for comparable flats. In particular, the age, the equipment and the type of the building, but also the amount of the rent and any local custom are to be taken into account. If there are technical standards for certain requirements of the living standard, the landlord is (in any case) obliged to comply with them. In principle, the standard applicable at the time of the construction of the building shall be applied.
The decision of the VII Civil Senate of the Federal Court of Justice, which is responsible for the law on contracts for work and services, referred to by the Regional Court of Bonn, according to which for a semi-detached house completed in 1997 the part of the standards of DIN 4109 applicable to it did not comply with the recognised rules of technology in the state of 1989, cannot be transferred to residential tenancy law. In a tenancy, it is primarily the concrete contractual agreements of the parties on the target quality of the flat that are decisive, which the landlord has to comply with upon handover and maintain throughout the entire tenancy period, and not the compliance with certain technical standards upon handover as in the case of a building. Furthermore, the landlord - unlike the building contractor - has to provide a warranty for material defects during the entire period of the tenancy, without usually having any influence on the actual structural condition.
Judgment of the Federal Supreme Court of 7 July 2010 - VIII ZR 85/09
Lower courts:
AG Bonn - Judgment of 27 February 2008 - 10 C 288/06
Bonn Regional Court - Judgment of 5 March 2009 - 6 S 84/08
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: Info@goldberg.de
