The case:
The plaintiff is the landlord and owner of a single-family house. The defendant is the tenant. The following is agreed in § 17 of the lease: "Animals may only be kept or temporarily kept with the express permission of the landlord... Small animals (small birds, ornamental fish, etc.) are not subject to the reservation of permission." During a viewing appointment, the plaintiff discovered that two goannas with a body length of more than 1 meter were running around freely in a room on the ground floor. Some of the wallpaper in the room had come away from the wall. The plaintiff issued a warning to the defendant for violating the requirement to obtain a permit for keeping animals and demanded that he get rid of all the animals by a certain date.
The defendant did not react. The plaintiff then issued a termination without notice, or alternatively an ordinary termination at the earliest possible date, with the statement of claim.
At the time of the judgment of the AG Bielefeld, the defendants kept, among other things, the following animals:
In a room on the ground floor, two Cumingi water monitors lived in a terrarium measuring 1.50 m x 1.00 m x 1.50 m. The female animal had a total length of 1.20 m, the male animal from 1.70 m to 1.80 m. The animals were allowed to leave the terrarium and move freely around the room. They were also allowed to leave the room in the presence of the defendant. Since monitor lizards are not "house-trained", it happened that they left feces and urine on the floor. The plaintiff demands the eviction of the rented property in the context of the proceedings before the district court. Rightly so?
The judgment of the district court
The district court allowed the claim. The defendants had to vacate the property.
In the opinion of the AG, the plaintiff was entitled to terminate the tenancy of the single-family house without notice. In the opinion of the court, the plaintiff could no longer reasonably be expected to accept the defendants' use of the rented property in a manner contrary to the contract, in the form of keeping animals that went beyond normal rental use.
Contrary to § 17 of the lease, the defendants keep, among other things, two adult water dragons in the rented apartment without the necessary permission from the landlord. In the opinion of the AG, the defendants are not entitled to a corresponding permit, since the animal husbandry they practice goes far beyond what constitutes normal use of the rented property for residential purposes. The court does not fail to recognize that it is a detached single-family house, which, with 8 rooms, 2 kitchens, 2 hallways, 2 bathrooms, a terrace and 5 cellar rooms, is certainly large enough to accommodate several animals, especially since the defendants only live there with two people. Also, the property is only occupied by the defendants, so that less consideration has to be given to the concerns of other residents of the house or neighbors. It cannot be assumed that the neighborhood will be disturbed by noise and odors from the present tiger enclosure. However, the size of the monitor lizards, which have a total length including tail of 1.20 m and 1.80 m respectively, must be taken into account in the opinion of the AG. There is no doubt that these are not small animals. Furthermore, they are not typical pets, but so-called exotic animals. The monitor lizards should also not be considered completely harmless. In addition, the animals are not kept exclusively in the terrarium, but can move freely throughout the entire apartment, at least in the presence of the defendant. In this context, it should be emphasized that the monitor lizards cannot be described as "house-trained". Rather, the animals leave their excrement on the floor of the rented property in an uncontrolled manner. The defendants had admitted that these excrements cause a significant odor nuisance. Furthermore, the defendants had confirmed at the court's request that these excrements are of such a consistency that they must be wiped up immediately. Even though the defendants emphasized that they always took care to do so, it could not be ruled out that such excreta would be overlooked and would seep into the floor covering or otherwise cause damage to the floor covering. The AG also addresses animal welfare aspects. The court doubts the current form of keeping the animals. The animals are only let out of their terrarium under supervision. However, this only measures 1.50 m x 1. 00 m x 1.50 m. Both animals spend about 14 hours a day in this space. Even if the monitor lizards do not have a pronounced urge to move, it is still incomprehensible how the animals, which have body lengths of 1.20 m and 1.80 m respectively, are supposed to move at all in this enclosure. In addition, it seemed doubtful to the court whether the animals actually spend only 14 hours a day in this terrarium, because both defendants work full-time. In addition to the usual working hours, there are also sleeping and resting hours, as well as other times for shopping, errands or housework, during which the defendants cannot deal with the animals. In addition, the defendants themselves had stated that species-appropriate keeping also includes giving the animals sufficient exercise and allowing them to explore their environment. This also includes giving them the opportunity to dig in sand or to bury themselves. However, the creation of such possibilities in living spaces goes well beyond normal residential use, even in a single-family house. Finally, it is also not apparent to the court that the defendants are dependent on the animals in a way that goes beyond the purely emotional bond with the animals. In view of the extent of the animal husbandry at issue, this case is not comparable to the keeping of a single dog, so that it is irrelevant for the assessment of the present case whether the plaintiff allowed the previous tenants to keep a dog.
Practical note
At first glance, the judgment appears clear and not worthy of mention. However, it is very remarkable in this context that the district court dealt in great detail with the question of whether the landlord must allow the tenants to keep the present animal, since the practice of keeping animals still constitutes normal use of the rented property.
This intensive examination is also imperative, because what is considered normal use by the tenant cannot be determined in general, but only in individual cases, taking into account the interests of all parties involved, according to the BGH. The assessment criteria include, in particular, the type, size, behavior and number of animals, the type, size, condition and location of the apartment and the house in which the apartment is located, the number, personal circumstances, in particular age, and legitimate interests of the other tenants and neighbors, number and type of other animals in the house, previous handling of the landlord as well as special needs of the tenant. Aspects of animal protection must also be taken into account when weighing up. Regardless of the size of the animals, it is contrary to the contract to keep dangerous animals
Only the keeping of exotic animals, to which roommates generally react with disgust, repulsion or fear, does not regularly belong to the use of the residential property.
In practice, it is therefore rarely easy to decide which pets the landlord must allow and which not.
In view of this, landlords should make sure that they only use current rental contracts when concluding the rental agreement in order to avoid ineffective general terms and conditions regarding "pet ownership". In addition, the issue of "pet ownership" should be negotiated with the tenants when the rental agreement is concluded, and it should be jointly agreed which animals are allowed and which are not.
If a dispute over the keeping of animals does arise at a later date, the landlord should contact Haus & Grund or a qualified lawyer in order to avoid unpleasant surprises in court.
According to a judgment of the AG Bielefeld, judgment of 25.07.2018 - 401 C 275/17
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.