What is the purpose of property insurance

Utility billing

Guiding principle:

If the contracting parties have agreed that the costs of building insurance (Section 2 No. 13 BetrKV) will be apportioned to the tenant, the costs of loss of rent insured in the building insurance as a result of building damage are also apportionable.

BGH from June 6, 2018 - VIII ZR 38/17 -

Long version:www.bundesgerichtshof.de [PDF, 11 pages]


Comments from the Berlin tenants' association

The form lease stipulated that the costs for the associated building insurance were to be borne by the tenant. The building insurance contract concluded by the landlord (property insurance "All Risk") included - limited to 24 months - the risk of a "loss of rent" as a result of the insured damage to the building.

The tenant said that the part of the premium that was attributable to the co-default risk should be deducted from the costs of building insurance. The landlord did not specify the premium portion to be deducted, so that the overall costs could not be apportioned.

The BGH did not want to follow this. According to ยง 2 No. 13 BetrKV, the costs of property and liability insurance are apportionable operating costs. This included the cost of insuring the building against fire, storm, water and other damage caused by natural forces as well as the costs of other insurances listed in the regulation. This basically included all property and liability insurance that was used to protect the building, its residents and visitors.

The insurance taken out by the landlord, as building insurance (as a whole), is part of property insurance within the meaning of Section 2 No. 13 BetrKV. A conditional insured event is property damage to the building. This covers the damage repair costs and serves to replace and restore the insured rental property. A loss of rent resulting from an insured damage to a building is, unlike a separate loss of rent insurance, which primarily covers the financial interests of the landlord and therefore cannot be passed on to the tenant of an apartment, is not an independent insured event, but part of the insured event of the building insurance. The co-insurance of rent loss as a result of building damage has also been an integral part of customary building insurance for a long time.

This insurance serves to protect the building, its residents and visitors. The purpose is to restore the building after an insured event. It does not change anything that the loss of rent resulting from damage to the building is also insured.

A tenant who (co-) finances the insurance premium for the building insurance should have a legitimate expectation in relation to the landlord that his expenses will benefit him in some way in the event of damage. He can expect the landlord to receive something in return for this and to benefit from the building insurance in the event of damage.

The building insurance, which is controversial here, adequately takes these requirements into account. The consideration consists in the fact that the tenant is protected in a certain way if he causes damage to the rented property through slight negligence. In relation to the landlord, he is not only relieved of the obligation to have to repair damage caused in this way at his own expense. Rather, the tenant who negligently caused an insured event that is covered in the building insurance contract is also protected against recourse by the building insurer. Such a waiver of recourse results from an interpretation of the insurance contract. This also benefits the tenant of an apartment with regard to a loss of rent insured as a consequence of the damage, because the insurer's waiver of recourse also extends to the loss of rent covered by the building insurance.