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Health hazard in rented property always to be remedied

The Berlin Regional Court ruled in its decision of 12. 05. 2022 – 67 S 30/ 22: A health hazard in rented property must always be remedied. It is irrelevant whether the tenant concluded the tenancy agreement with knowledge of this condition.

Facts of the case

A tenant demanded that his landlord install a handrail on a staircase located in the rented property. In the tenant’s opinion, using the stairs without a handrail was not without significant health risks. The landlord countered that when the tenancy agreement was concluded the stairs had already been without handrails. By signing the tenancy agreement, he had accepted the condition of the rented property.

Health Hazard in rented property

In principle, the landlord has the obligation under § 535 I 2 BGB to provide the rented property in a condition suitable for use in accordance with the contract and to maintain it in this condition during the rental period. In this case, there is no agreement on the condition of the rented property in accordance with the contract, therefore it has to be determined by way of interpretation, taking into account good faith pursuant to §§ 133, 157 BGB in conjuction to § 242 BGB what both parties agreed on and whether the condition of the rented property corresponds to this agreement. Due to the missing handrails of the stairs, there is an increased risk of falling and thus a health hazard based on the condition of the stairs.

Existence of a defect and its removal

The two parties therefore agreed, at least implicitly, that the rented property was free of impairments that were harmful or dangerous to health. With the absence of the handrail, this was not the case and there was a defect. According to § 535 I 2 BGB the landlord’s main obligation is and remains to remedy the defect, in this case the health-endangering condition. However, it has not yet been conclusively clarified how the unconditional taking into use by the tenant affects the claim to remedy the defect. The appeal to the Federal Supreme Court was admitted.