A landlord can refuse to fix things
If a tenant reports a lack of rent to his landlord and the landlord does not react, the question of how to proceed further arises: Should the tenant rectify the defect at his own expense and ask the landlord to pay an advance? Or does it make more sense to have the landlord sentenced to carry out the repairs? Does it make sense not to repair the damage and reduce the rent? In particular, the risk of litigation costs in a tenancy dispute plays a decisive role in this decision.
1. The burden of proof is decisive
In principle, the landlord is obliged to carry out repairs so that the tenant can use the apartment in the contractually agreed manner. However, this principle does not apply to defects caused by the tenant himself. The decisive factor in a process is the question of the burden of proof. It is always about areas of responsibility. For example, if the landlord can prove that the damage occurred in the tenant's area of responsibility, the tenant must prove that he is not responsible for the defective condition of the property. In detail, this question can become very complicated - so that even experienced lawyers cannot make a prognosis about a court judgment with absolute certainty. However, certain case constellations are typical and are decided uniformly by the courts.
2. Possible types of action
Various types of action are possible in civil law. There are essentially three options in the present case constellation:
- The landlord can be obliged to carry out the repair (obligation action)
- The tenant can carry out the repair himself and sue the landlord for reimbursement of costs or demand an advance payment (performance suit)
- The tenant reduces his rent; this leads to a declaratory action on the entitlement to a rent reduction.
3. The costs (amount in dispute)
The costs of a legal dispute always depend on the amount in dispute. This is usually the value of the item that is ultimately at stake. At a Advance action the matter is quite clear: the cost of the repair corresponds to the amount in dispute.
At Compulsory actions and declaratory actions the matter is naturally more difficult. If tenants and landlords argue about remedying defects in an apartment, it is not the costs of this measure that are decisive, but a (fictitious) rent reduction that a tenant would be entitled to. This is extrapolated to the year. The assessment basis for the rent reduction is not the basic rent, but the basic rent (BGH, judgment of April 6, 2005 - XII ZR 225/03). The justification for the orientation towards the warm rent is based on the fact that the use of an apartment represents a total service - without the ancillary costs, this service is incomplete and the apartment cannot be fully used. With a warm rent of 500 euros and a rent reduction of 10%, for example, there is an annual reduction of 600 euros (twelve monthly reductions of 50 euros each).
However, there is no clear legal position in relation to the question of how the amount in dispute is to be assessed in the case of lawsuits relating to the rectification of defects (action for obligation) or the determination that a rent reduction is justified (action for declaratory judgment). The courts in Germany judge differently here. For example, while the Berlin Higher Regional Court (decision of August 26, 2010, 8 W 38/10) assumes the value of the reduction for one year (Section 41 (5) GKG), the Karlsruhe Higher Regional Court is based on 3.5 times the value this annual reduction (decision of 20.09.2013 - 10 W 18/13) - at least for the declaratory action due to a rent reduction. This results from Section 48 (1) Sentence 1 GKG and Section 9 ZPO.
In the case law, however, there is a clear trend in favor of a simple annual reduction, even in the case of declaratory actions due to a rent reduction. As a result, this view is tenant-friendly, because excessively high amounts in dispute would make the risk of litigation costs too high for the tenant.
4. Litigation cost risk
Example: forecast of process cost risk
The following example is based on an amount in dispute of 1,000 euros. The costs are only calculated for the first instance. It is assumed that the opposing party (landlord) will also be represented by a lawyer.
- Own lawyer
- Procedure fee (1.3): € 104, -
- Appointment fee (1,2): € 96, -
- Expenses: € 20
- VAT: € 42, -
- Total € 262, -
- Adversary's lawyer
- (like own lawyer): € 262, -
- Court costs
- Total: € 683, -
However, the following must be observed here: The taking of evidence often requires the preparation of extensive (and therefore more expensive) reports. Sometimes there are additional travel expenses for a lawyer who is traveling from far away. This example also excludes any other potential litigation costs. The calculation should therefore only be understood as a rough guide.
Legal advice is worthwhile
In individual cases, there is therefore the risk that the tenant will have to pay twice if he has the damage repaired himself. This is precisely why it is so important to get advice from a lawyer beforehand. An experienced lawyer will be able to assess the risks of a legal dispute in advance. If he is convinced that a lawsuit has no prospect of success, he will advise against this path - as an organ of the administration of justice, he is even obliged to do so. The tenant then only has to pay the counseling fee for the lawyer. According to Section 34, Paragraph 1, Clause 3 of the GVG, this fee may not exceed EUR 190. Of course, the duration of civil litigation should also be considered. Sometimes it can take a whole year before a lawsuit is finally decided.
Essentially, it always depends on the type of defect and the question of who has to bear the costs of eliminating the defect. According to this, the obligation to bear the costs is also determined in a civil litigation. The substantive tenancy law also determines the litigation cost risk. Whoever is ultimately in the right does not have to pay either the court or the lawyers.
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