the Federal Court today ruled that a lack of rented accommodation due to a surface deviation also present then, if the written rental agreement contains no reference to the living space.
rented In the case decided by the applicant from the respondent a penthouse apartment in Mannheim. The written rental agreement contains no information on the size of the dwelling unit can be used in the document is not planned. The apartment had been offered by a real estate broker with the following ad in the newspaper: "MA-Waldhof, 3 ZKB-DG, balcony, about 76 m², parquet, fitted kitchen, DM 890, - + NK". Before signing the tenancy agreement the tenant is a plan map and a detailed calculation of floor space were given in which the total size of the 76.45 square meters apartment is shown. 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 district court ruled in favor of action for payment in part. The district court dismissed the appeal of the defendant the action. directed against the revision of the tenant was successful. Who among other responsible for the Housing Tenancy Eighth Civil Division of the Federal Court held that, given the events up to the signing of the lease alone the lack of information on the size of homes in the Treaty text, were there not also be provided not taken possible that the parties at the conclusion of the Treaty concerning the living did not want to bind the contract. 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, to the previously specified living space. This is an implicit agreement about the size of homes. If - as in the case decided - a living space shortfall is more than ten percent before, this leads to a reduction in rent pursuant to § 536 BGB * (established case law, see, most recently, on 10 March 2010 - VIII ZR 144/09, Press Release No. 53/2010).
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.
* § 536 BGB: rent reduction for material and legal defects
If the leased property at the time of delivery to the tenant a defect that would cancel their suitability for contractual use, or arises during the rental period such a defect, then the tenant for the time when the medical fitness is revoked, free from payment of rent. For the period during which the fitness is reduced, it only has a reasonably cheap Rent payable. Minor reductions in fitness is not considered.
Case of 23 June 2010 - VIII ZR 256/09
AG Mannheim - Case of 7 November 2007 - 17 C 460/06
LG Mannheim - Case of 24 September 2008 - 4 S 189/07
Source: Release No. 128/2010 dated 23 June 2010, the press office of the Federal
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