The Federal Supreme Court has ruled that a defect of a rented flat due to a deviation in area can also exist if the written tenancy agreement does not contain any information on the living area.
In the case decided, the plaintiff rented an attic flat in Mannheim from the defendant. The written tenancy agreement did not contain any information on the size of the flat, nor was this provided for in the form used. The flat had been offered by an estate agent with the following advertisement in the newspaper: "MA-Waldhof, 3 ZKB-DG, balcony, approx. 76 m², parquet, EBK, DM 890,- + NK". Before the tenancy agreement was concluded, the tenant was given a sketch of the floor plan and a detailed calculation of the living space, showing the total size of the flat as 76.45 square metres. The tenant claimed repayment of overpaid rent on the grounds that the flat only had a living space of 53.25 square metres.
The district court granted the claim for payment in part. The district court dismissed the action on the defendant's appeal.
The tenant's appeal against this decision was successful. The VIII. Civil Senate of the Federal Court of Justice ruled that in view of the events leading up to the signing of the tenancy agreement, it cannot be inferred from the lack of information on the size of the flat in the text of the agreement alone, which was also not provided for therein, that the parties did not intend to contractually bind themselves with regard to the living space when concluding the agreement. On the contrary, the overall circumstances established by the Court of Appeal lead to the conclusion that the parties concluded the written contract with the mutual understanding, recognisable to the respective contractual partner, that the flat would have the previously stated living space. This constitutes an implied agreement on the size of the flat. If - as in the case decided - the living space is more than ten per cent smaller, this leads to a rent reduction pursuant to § 536 BGB (established case law; cf. most recently judgement of 10 March 2010 - VIII ZR 144/09, press release no. 53/2010).
The case has been referred back to the Regional Court because further findings are to be made, inter alia, on an additional claim for operating costs submitted by the landlord for set-off.
Judgment of the Federal Supreme Court of 23 June 2010 - VIII ZR 256/09
Lower courts:
AG Mannheim - Judgment of 7 November 2007 - 17 C 460/06
LG Mannheim - Judgment of 24 September 2008 - 4 S 189/07
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
