The concept of a defect in tenancy law and the reduction of rent
In the area of tenancy law warranty law, a reduction of the rent according to Section 536 BGB can be considered if a defect is present. In addition, the tenant may claim rectification of the defect, damages or termination of the tenancy. The subjective definition of a defect applies. The defect always exists if the actual condition of the flat deviates negatively from the target condition. The “target condition” is determined according to what was contractually agreed between the parties to the tenancy agreement. A material defect exists if the agreed condition of the rental object deviates from the actual condition. A defect of title, on the other hand, always exists if the use of the apartment is impaired or deprived by the rights of third parties.
When and for how long can a reduction be made according to Section 536 BGB?
The landlord is obliged to maintain the flat in the condition stipulated in the contract. A defect in the rented property must restrict its utility value in order for the rent to be reduced. The rent is then reduced by operation of law. The reduction does not have to be declared. The tenant does not have to apply to the landlord or to a court. However, if a defect occurs, it should be reported to the landlord without culpable hesitation. The notification sets the point in time from which a reduction can be accepted and remedied by the landlord. The notice of defect must be sufficiently specific to enable the landlord to recognise the defect and take action.
Failure to give notice of defects under Section 536c (2) BGB
A late notice is equivalent to a failure to give notice of a defect. If the tenant fails to give notice of a defect pursuant to Section 536 c (2) BGB, claims for reduction, damages or termination may be excluded. The landlord should be given a reasonable period of time to remedy the defect. If this period expires unsuccessfully, the tenant may remedy the defect himself and demand reimbursement of the costs from the landlord. There is also the possibility from this point on that the landlord will have to bear the lawyer’s fees incurred thereafter as damage caused by delay according to Section 286 BGB. If the tenant is uncertain about the existence of the defect or the amount of a reduction, it is recommended that he pays the rent with reservation in order to avoid termination without notice by the landlord.
Exclusions
The reduction of rent is excluded, for example, in the case of a contractual agreement, insignificant defects, knowledge of rental defects at the time of conclusion of the contract, grossly negligent ignorance of rental defects, unconditional acceptance of the rental object, breach of the duty of notification by the tenant, a rental defect for which the tenant is responsible and default of acceptance of the removal of defects.
Amount and calculation of the reduction
In the event of an impairment of the usability, the gross rent (basic rent with the ancillary costs or the advance payments for the operating and heating costs) shall be reduced appropriately. The rate of reduction is either stated as a percentage value in order to create comparability of reduction rates or in a concrete euro amount in order to avoid problems with the settlement of accounts. Different calculation methods have been developed for the calculation.
Determination methods in detail: Estimation according to Section 287 ZPO, method of utility value analysis and simplified utility value analysis
In the case of minor defects, estimation by the courts according to Section 287 ZPO is common. Compared to the expert, this is cheaper and does not lead to large deviations compared to the other methods. The procedure of the so-called utility value analysis is used by experts and requires the determination of the contractually agreed target quality, the weighting of the components of the rental object and the determination of the impairment. This is recommended in the case of major defects and high rents, for example in commercial leases. A simplified utility value analysis attempts to determine the utility value of the individual rooms and areas and to assess their impairment in use.
Reduction table as a guide
The reduction table below shows example cases. Rent reduction tables show the comparability of a large number of decisions from case law. This is because there is no binding reduction rate for certain housing defects. The rulings may differ or contradict each other, and in individual cases a different assessment is conceivable. The relevant factor is always the respective defect. However, reduction tables allow the tenant to at least determine a framework within which courts have assumed a reduction for a similar defect.
| Reason for rent reduction | Rate of reduction | Reference | |
| Electricity blockage because the landlord as contractual partner of the electricity supplier has not made payments | LG Saarbrücken judgement, ref.: WuM 1995, 159. | ||
| Variation of area in commercial and residential rent by at least 10% | BGH judgement of 24.3.2004, ref.: VIII ZR 133/03; BGH judgement of 04.05.2005, ref.: XII ZR 254/01. | ||
| Harassment | |||
| Rat infestation of a flat / pest control with baits and trace dust over two weeks | 80 % | AG Dülmen judgement, ref.: 3 C 128/12. | |
| considerable odour nuisance due to keeping of animals by another tenant in the house | 33 % | AG Köln judgement, ref.: WuM 1989, 234. | |
| Nesting pigeons in front of the window | 30 % | AG Pforzheim judgement of 09.03.2000, ref.: 2 C 160/98. | |
| Reduction due to vermin infestation in the flat as a defect | 25 % | AG Bremen judgement, ref.: 25 C 118/01. | |
| Brothel in the neighbourhood | 20 % | AG Wiesbaden judgement, ref.: WuM 1998, 315. | |
| Smell of cigarette permeates ceiling and walls of neighbouring flat | 10 % | AG Charlottenburg judgement of 17.03.2008, ref.: 211 C 3/07. | |
| Power, water or heating failure | |||
| Complete heating failure in the months of September to February | 100 % | LG Berlin judgement, ref.: WuM 1993, 185. | |
| Gas supply failure: no heating, hot water or cooking facilities in the winter months | 60 % | AG Nürnberg judgement of 22.03.2017, ref.: 16 C 127/16. | |
| Other defects in the flat | |||
| Asbestos exposure from night storage heaters | 50 % | LG Dortmund judgement, ref.: ZMR 1994, 410. | |
| Formaldehyde in concentrations hazardous to health | 50 % | LG München judgement, ref.: NJW-RR 1991, 975. | |
| Pollutant exposure due to defective parquet adhesive | 30 % | BGH judgement, ref.: VIII ZR 411/12; WuM 2013, 253; 2014, 26. | |
| Significant draughts due to leaking doors and windows | 20 % | LG Kassel judgement, ref.: WuM 2003, 670. | |
| Balcony not usable as a defect | 15 % | AG Bonn judgement, ref.: WuM 1986, 212. | |
| Contractually guaranteed car parking space is not usable | 10 % | AG Köln judgement, ref.: 220 C 215/99. | |
| Mould and damp | |||
| considerable health hazard due to mould infestation | 100 % | AG Charlottenburg judgement, ref.: GE 2007, 1387. | |
| Considerable moisture penetration of kitchen, living room and bedroom, musty odour and mould infestation | 80 % | AG Hamburg judgement, ref.: WuM 1987, 272. | |
| Impairment of use due to moisture in the walls | 50 % | LG Berlin judgement, ref.: GE 1991, 573. | |
| Water ingress during one month, unrestricted use of commercial premises not possible | 40 % | LG München judgement of 13.11.1985, ref.: 15 S 11147/85. | |
| Clogged drain in the shower | 30 % | AG Köln judgement, ref.: 206 C 85/95. | |
| Living room unusable due to collapse caused by water damage | 30 % | AG Bochum judgement, ref.: WuM 1979, 74. | |
| Swollen and defective laminate due to moisture | 20 % | AG Schöneberg judgement, ref.: 109 C 256/07. | |
| Fogging | 20 % | LG Berlin judgement, ref.: GE 2003, 1019. | |
| waste water from the flat above flows into the toilet | 20 % | AG Berlin-Neukölln judgement, ref.: 8 C 473/81. | |
| Damp and mould in a restaurant | 15 % | AG Altenburg judgement of 31.08.2000, ref.: 1 C 1058/98. | |
| Lead in drinking water, limit values exceeded | 10 % | AG Hamburg judgement of 17.12.1987, ref.: 49 C 667/86. | |
| Noise and disturbance | |||
| considerable construction work in the attic of the house | 60 % | AG Hamburg judgement, ref.: WuM 1987, 272. | |
| Extensive construction and renovation work | 50 % | AG Weißwasser judgement, ref.: WuM 1994, 601. | |
| Noise pollution due to construction work on the neighbouring house | 50 % | OLG Hamm judgement, ref.: ZMR 1983, 273. | |
| Noise nuisance from a restaurant until far into the night | 50 % | AG Berlin-Schöneberg judgement, ref.: MM 1995, 28. | |
| night-time construction works | 30 % | AG Berlin-Mitte judgement, ref.: MM 2007, 183. | |
| Traffic noise due to road works | 10 % | BGH judgement oft 19.12.2012, ref.: VIII ZR 152/12. | |
| Noisy rooms in the flat | 10 % | AG Lüdinghausen judgement, ref.: WuM 1980, 52. | |
| Flat does not have sufficient sound insulation | 10 % | AG Köln judgement, ref.: 220 C, 215/99. | |
| Noise from children (acceptable in the case of normal child behaviour, but excessive noise at quiet times) | 10 % | AG Hannover judgement, ref.: WuM 87, 218. | |
| Noise nuisance in the evening due to bottles being thrown into bottle banks | 10 % | LG Berlin judgement, ref.: GE 1985, 427. | |
| Dog barking | 10 % | BGH judgement of 20.06.2012, ref.: VIII ZR 268/11. | |
| constructional measures | |||
| Scaffolding in front of attic flat, incl. roof work | 50 % | BGH judgement of 12.12.2012, ref.: VIII ZR 181/12. | |
| Retail shop dependent on walk-in customers, but impaired by construction site | 30 % | OLG Frankfurt am Main jugdement of 11.02.2015, ref.: 2 U 174/14. | |
| In hot weather: indoor temperatures of 30°C during the day and 25°C at night | 20 % | AG Hamburg judgement of 10.05.2006, ref.: 46 C 108/04. | |
| Noise and vibrations from a neighboring construction site | 20 % | KG judgement of 17.09.2020, ref.: 8 U 1006/20. | |
| Scaffolding with plastic film – darkening the apartment | 15 % | AG Mainz judgement of 28.11.1996, ref.: 10 C 49/96. |
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