The Supreme Court has held that a lack of rented accommodation due to a surface deviation can also occur when the written rental agreement contains no reference to the living area.
rented In the case decided by the applicant from the respondent a penthouse apartment. The written rental agreement contains no Information on the size of the apartment. These are also not used in the form provided. The apartment had been offered by a real estate agent with an advertisement in a newspaper, which posted the apartment with about 76 square meters. Before signing the tenancy agreement the tenant is a plan map and a detailed calculation of floor space were passed in the overall size of the apartment had also been reported at 76.45 square meters. The tenant has on the ground that the apartment had only made a living area of 53.25 square meters, including the reimbursement claims of unpaid rent.
The AG Mannheim has upheld the claim for payment in part. The LG Mannheim contrast dismissed the appeal of the defendant the action.
directed against the revision of the tenant was successful. The VIII Civil Division of the Supreme Court has now ruled that in view of the events up to the signing of the lease to the lack of information on the size of homes in the treaty text, which were not provided in the form, did not indicate that the parties relating to the living space is not contractual would bind. The Court of Appeal determined if circumstances allow rather suggest that the parties in the written agreement of both parties have concluded the obvious notion of agency, the apartment as defined above living space on. In the present case had been made prior to contract repeatedly clear statements on the living space. Both in the display, and in a floor plan sketch and a living space in an exact calculation of floor space was specified. The total circumstances presented here establish an implied agreement on the apartment size.
Gem § 536 BGB, the tenant is exempt from payment of rent if the leased property at the time of release has a defect that would cancel their suitability for contractual use. For the period during which the fitness is reduced, the tenant has to pay only a reasonable bargain rent. If, as in the case decided, a living area below before more than ten percent, this leads to a reduction in rent that is no problem according to § 536 BGB. The case has been remanded to the district court, because other observations arise, inter alia, to the landlord to offset operating costs made additional claims. The decision of the Supreme Court should, in some cases, says no way out that all sorts of pre-contractual agreements were binding on later:
conclusion. Only if made prior contract several strong statements on the state of rental property, this may in case of deviations from the true condition of the leased property pursuant to a reduction in rent. § 536 BGB reasons. False information by the landlord could now be consequences even if the lease contains no finding in this regard.
Supreme Court ruling of 23.06.2010 - VIII ZR 256/09
Bundesgerichtshof - Press Office Communication No 128/2010
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