Guiding principle
The fact that a heating and ventilation system that is in accordance with the contractual condition of the rented property causes high energy costs is not relevant when assessing whether the rented property is defective, provided that the system meets the relevant technical standards at the time of construction of the building and is working properly.
The case:
In 2007, the landlord and tenant signed a lease for the premises. The rented premises are located in a building that was constructed during the GDR era. Before handing over the rented premises, the landlord carries out extensive renovations to the building. However, the district heating system and the ventilation system remain unchanged. Both can only be adjusted centrally. In 2010, the tenant reduced the rent. He complained that the heating was oversized and, furthermore, could not be adjusted individually and according to need. It was not possible to operate the system economically.
The verdict:
The tenant is not entitled to a rent reduction. The heating and ventilation systems are not defective. There is no negative deviation between the actual and target conditions. The heating and ventilation systems had already been in the property when the lease was signed and, according to the appendices attached to the lease, were not to be changed or modernized. The tenant had thus accepted these heating and ventilation systems as being in accordance with the contract. It was irrelevant whether these caused high energy costs compared to systems in other rented properties. They were contractually agreed and would meet the relevant technical standard when the building was constructed and work without fault. The tenant also cannot rely on the economic efficiency requirement. At best, it could be of significance when settling the heating costs incurred. A tenant's claim to the modernization of an existing and contractually agreed heating and ventilation system cannot be derived from this.
Practical tip:
With this judgment, the Federal Court of Justice strengthens the property rights of the landlord. The tenant is not allowed to "force" the landlord to carry out extensive modernization measures on the heating system by reducing the rent.
However, landlords of older properties with older heating systems are advised to explicitly inform tenants about the year of construction of the house and heating system before concluding the lease and to put this information in writing, preferably in the lease. This way, it can be proven that the tenant has accepted the existing heating system as contractual.
Also important:
In the present ruling, the Federal Court of Justice also emphasizes the economic efficiency requirement. Accordingly, the landlord has a contractual secondary obligation to charge the tenant only those operating costs that are reasonable and necessary. The landlord must therefore exempt his tenant from unnecessary costs:
If the landlord uses a heating system that is completely inefficient, he may have to accept cuts in the operating cost calculation for heating costs. Landlords should therefore seek competent advice from their Haus & Grund contact point at an early stage in the event of a dispute.
Reference:
BGH, judgment of December 18, 2013 - XII ZR 80/12, previously: KG, May 21, 2012 - 8 U 217/11, LG Berlin, September 8, 2011 - 32 O 615/10
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.