Guiding principle
The landlord is not generally obliged to regularly check and clean gutters and rainwater drains, provided that there are no concrete signs of an impending blockage or if blockages due to leaves are not to be expected due to the location.
The facts of the case:
The plaintiff, a tenant, claimed damages from the defendant, the landlord. The tenant stated that rainwater had accumulated in the drainage pipes due to a blockage of leaves and that this had caused water to enter her rented unit. The tenant asserted a claim against the landlord for the resulting damage to her property. She claimed that the gutter/rainwater drains had not been checked and cleaned regularly and thoroughly. The defendant landlord rejected the tenant's claim and requested that the action be dismissed.
The tenant's claim for damages against the defendant landlord was already dismissed in the first instance before the Duisburg District Court. The tenant was also unsuccessful in the court of appeal.
Decision:
The Higher Regional Court of Düsseldorf, as the court of appeal for the plaintiff tenant, informed her by way of a tentative ruling that it would dismiss the appeal.
The Higher Regional Court of Düsseldorf stated as grounds that the plaintiff's appeal had no prospect of success, since the District Court of Duisburg had already correctly dismissed the claim.
The plaintiff's argument was that a backlog had formed in the rainwater drains and that this was due to a breach of the landlord's cleaning obligations. However, the court pointed out that there was no prima facie evidence for the plaintiff's claim. Of course, a breach of cleaning obligations could cause a backlog, but this was not the only typical course of events and the only conceivable cause. There are many other possible causes of damage, such as foreign bodies in the pipes or unforeseeable amounts of water due to unusually heavy rain.
It was therefore the plaintiff's responsibility to prove that it was precisely a breach of duty by the landlord that had led to the damage. However, the tenant was unable to provide this proof. According to the court, the landlord has no general obligation to regularlyand clean them only exists if, for example, the location requires increased attention – for example, if there are tall trees nearby, so that a not insignificant amount of leaf fall is to be expected. In the case to be decided, there was indeed a birch forest in the vicinity. Despite the landlord's fundamental obligation to inspect and clean in this specific case, the taking of evidence had shown that the landlord had in fact fulfilled this obligation. Since the damage occurred in the summer and at least six weeks before the damage occurred, the court denied a breach of duty and advised the defendant to withdraw the appeal for reasons of cost.
Conclusion:
In addition to the court's guiding principle that there is no general obligation to inspect and clean gutters unless, for example, clogging is to be expected due to the location, the decision also shows that a distinction is made between the seasonal leaf falls.
It is therefore advisable for every landlord to apportion the cost of gutter cleaning as operating costs in any case where there are negative local conditions. It is recommended that this item be specifically listed in the lease under "other operating costs," otherwise an apportionment is not possible. This is because the costs of cleaning a gutter are not covered by the other explicitly listed ancillary costs in accordance with the Operating Costs Ordinance.
Reference:
Higher Regional Court of Düsseldorf, indicative ruling dated March 30, 2012 – I – 24 U 256/11 –
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.