The Supreme Court has ruled that a clause is invalid in a housing lease because the tenant undue discrimination, if the tenant is imposed by the clause, the duty to carry out minor repairs without being hampered him the opportunity to undertake this work in-house performance open.
The defendants were tenants of an apartment by September 2007 the applicant housing association in Munich. The redecoration of the rental agreement contains the following Provisions:
"The tenant is obliged to let the cosmetic repairs, such as liming, painting or wallpapering the walls and ceilings, painting, and the treatment of floors, windows and doors, run in the home, and the roller shutters, light and bell systems, locks to service taps, cisterns or flush valves and wash-and draining and replacing broken glass panes [...]"
the applicant seeks, inter alia, damages for failure to cosmetic repairs in the amount of 7036 , 35 €. The AG in Munich has rejected the claim in that regard. The Munich District Court, the appeal the landlord rejected because, to be carried out properly according to the court, minor repairs and painting, by any tenant and professionally. The beauty repair Conditions under which the lessee assumes the duty to "let run" the beauty out repairs to the overall ineffectiveness of the passing clause.
directed against the revision of the landlady had no success. Who among other responsible for the Housing Tenancy Eighth Civil Division of the Supreme Court ruled that the tenants were not obliged to carry out cosmetic repairs. It is questionable whether this
the pass-through of the rental agreement listed cosmetic repairs the tenant unfairly disadvantaged. The required content review of the GTC is based on § § 309, 308, and the general clause of § 307 BGB. The § § 309, 308 BGB mentioned in this regard but no specific clause bans on cosmetic repairs and is not applicable here. The content review is thus for the general clause of § 307 I BGB in terms of the provisions are invalid if they place the contractual partner of the user contrary to the requirement of good faith and unreasonable disadvantage. The clause used in the case decided on cosmetic repairs can be understood as meaning any case due to its wording, that the tenant, excluding the possibility of self-performance perform the work by a qualified craftsman must leave. For the purposes of content review are in accordance with the terms and conditions. § 305 c BGB II interpreted as customer hostile as possible. In this one significant customer most hostile interpretation of the clause could not stand up to a content review under § 307 I BGB.
is that the Court of Federal forms-contractual pass-through of the law the landlord's obligation, to carry out cosmetic repairs to the tenant generally permitted. However, the Federal Court also noted that the traffic has become customary practice of passing on the cosmetic repairs to the Tenant is characterized by the fact that the tenant can perform his assigned cosmetic repairs on their own performance.
is made to the tenant the option of making the cosmetic repairs in-house service, the passing of this work an unfair disadvantage, as defined in § 307 I BGB, the tenant dar. For cosmetic repairs are, whether they carry out the tenant or the landlord needs only professionally in average kind and quality to perform. This does not necessarily require the retention of a professional firm. The Supreme Court also took part in the ineffectiveness of beauty leads to the total repair of Use ineffectiveness of the passing clause.
Conclusion: Decisions to Beauty repair in terms of rental agreements are always of high relevance degree. In exams always exert strict control acc. § 307 I BGB make. Notice that the ineffectiveness of beauty repair Conditions under which the lessee assumes the duty to "let run" the cosmetic repairs to the overall ineffectiveness of the passing-out clause, the tenant then so can not be required to carry out cosmetic repairs. The Supreme Court has already held in its ruling of 13.01.2010 - VIII ZR 48/09 found this a beauty repair clause, which has an unreasonable disadvantage of the tenant, the ineffectiveness of the entire beauty repair clause out, since it is the duty imposed upon the tenant is to carry out cosmetic repairs to a single legal obligation that can not be split into individual actions or individual aspects.
Supreme Court ruling of 09.06.2010 - VIII ZR 294/09
Bundesgerichtshof - Press Office Communication No 115/2010
0 comments:
Post a Comment