The facts of the case
In 2017, a buyer acquired an already rented apartment building with a notarised purchase contract. At the end of 2017 to the beginning of 2018, there was a significant increase in fresh water consumption due to a burst water pipe. Due to the change of ownership, the city reassessed the fees for the calendar year 2018 with a wastewater notice. The landlord received a statement for the amount of fresh water supplied to him, which was conspicuously high due to the burst water pipe. The seller did not inform the buyer of the statement received. The buyer of the property then received a notice at the beginning of 2019, in which the property details were newly determined and the sewage charges were five times higher than in previous years. The buyer then filed a claim for damages against the landlord. He sought reimbursement of the difference between the newly calculated and the “normal” sewage fees.
Breach of a non-performance-related collateral duty
The starting point of the proceedings is the question: Does the seller have to provide information about a burst water pipe or not? The seller could have violated a non-performance-related secondary obligation if he had a duty to inform the buyer. A contractual obligation exists between the buyer and the seller by virtue of the purchase contract for the property. This obligation also gives rise to non-performance-related secondary obligations. Such secondary obligations are duties of disclosure and fiduciary duties. These duties are based on § 241 II BGB and also apply post-contractually. According to § 241 II BGB, the debtor is obliged to take into account the interests of his contractual partner that are worthy of protection. Which interests are worthy of protection is to be determined in consideration of good faith according to § 242 BGB. The seller is in a position of power, since he has knowledge and information to which the buyer has no access and which affect his interest in performance and integrity. In order to balance this position of power, the seller is already obliged to inform the buyer sufficiently about all relevant external circumstances when acquiring the property.
Decision of the Cologne Regional Court
In its judgement of 06.12.2021 – 7 O 26/ 21, the Regional Court of Cologne ruled: The seller must provide information about a burst water pipe. A burst pipe resulting in an increased waste water notice is a relevant external circumstance. The buyer’s interest in performance and integrity is impaired by this circumstance. Therefore, there is a duty of notification and clarification for this circumstance according to § 241 II BGB, which the seller has violated. In the present case, the seller is obliged to compensate the buyer for damages. At the latest when he received the notice of the sewage charges, he had positive knowledge of the extent of the burst water pipe and should have informed the buyer about it.