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furnished for use of consumption data of a non-calibrated water meter in the utility billing

The Federal Court today ruled that under the single cost accounting, the measurement values of a non-calibrated water meter may be used if the landlord can prove that the reported data are accurate.

The plaintiffs from September 2004 to February 2008 an apartment of the Defendants in Bautzen rented. Adjacent to the apartment water meter was not calibrated in the years 2006 and 2007. The applicants consider that the determined by the instrument readings are unusable according to § 25 para 1 sentence 1 No. 1a EichG * and the defendant therefore be charged on the cost of water / waste water should not set in the appropriate operating expense reports. This is apparent in the light of the advance payments made with a credit of € 134.09 for the year 2006 amounting to € 222.83 for the year 2007. The defendants claim that the water meter was working properly, so no need for the applicants 2006, € 496.53 and pay extra for the year 2007 was € 154.79.

In the lawsuit, the plaintiff by the defendant in addition to repayment of the deposit and the payment of the in their view, requires credit resulting from the operating statements for the years 2006 and 2007 (a total of € 1,117.77). The defendants have said the alleged claims for additional payment to offset operating costs. The district court has upheld the complaint. On appeal by the defendant, the district court amended the verdict and dismissed the action in the amount of € 377.62.

The directed against Revision of the plaintiff was unsuccessful. Who among other responsible for the Housing Tenancy Eighth Civil Division of the Federal Court held that under the utility bill alone is relevant that the actual consumption is accurately reproduced. Are the set in the utility bill consumption levels on the reading of a calibrated measuring device speaks a presumption of fact that these values reflect actual consumption. To be read by a non-calibrated gauge values is the presumption of correctness does not apply. set out in this case, the landlord and prove that the readings are accurate. Manages the owner of this evidence is a use of the measured values § 25 para 1 no 1a EichG prejudice. According to the findings of the Appellate Court of proof by submitting a certificate was out of a nationally recognized testing laboratory, indicating that the measurement tolerances were met.

* § 25 EichG: Persistence of Custody

(1) It is forbidden to

first Instruments for the measurement

a) the length, area, volume, mass, thermal or electrical energy, thermal or electrical power, the flowrates of liquids or gases, or the density or the levels of liquids,

b) (...)

uncalibrated in trade used or so into the stables that they can be taken without special preparation in use

Case of 17 November 2010 - VIII ZR 112/10

AG Bautzen - Case of 30 June 2009 - 21 C 1010/08

LG Bautzen - Case of 30 April 2010 - 1 S 87/09

Source: Press Release No. 221/2010 dated 17/11/2010 the press office of the Federal

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to terminate a lease on an apartment in a by owner-occupied buildings

The Federal Court today, the conditions of termination of a lease on a apartment in a building occupied by the owner himself clarified.

The defendants are tenants of an apartment by the applicant in Friedberg. The lease was in 2004, concluded with the previous owner of the house in the upper floor is the apartment of the defendant. At the time, next to the apartment on the ground floor apartment in a Basement of the house, rented consisting of a living room with kitchenette and bathroom, to third parties. When the applicant purchased the house in 2006, the lease was no longer on the basement. The applicant moved into the apartment with her husband on the ground floor and uses the premises in the basement as additional rooms (waiting room, ironing and work).

The applicant announced the lease based on § 573a para 1 BGB *. Raised by her eviction action was dismissed by the District Court. The district court dismissed the appeal by the applicant.

The directed against the revision of the applicant has been rejected by among others, responsible for the Housing Tenancy Eighth Civil Division of the Federal Court. To assess whether there are in a building more than two dwellings, the traffic view will prevail. Under a flat generally an independent, economically and geographically defined area is understood to allow an independent financial management. According to the findings of the court's premises meet in the basement of the house the applicant of these requirements, because in addition to a 42 sqm living room, they have a kitchen and a diner with Toilet.

The fact of the existence of three apartments in the residence of the applicant has not changed in that the applicant to the basement rooms has built in their residential area by the apartment since the purchase of the house in 2006 as Visitors, ironing use and study. For this expansion of the residential area of the applicant, once given the housing stock has not reduced. The Court of Appeal has given reasons for his dissenting views on injustice in the Senate decision of 25 June 2008 (VIII ZR 307/07) supported. The Senate approved this decision of trial judge determining the allocation of complementary Rooms on two floors did not prevent the adoption of a (single) apartment was based on different factual circumstances. The respective areas on the top floor of that building featured - other than the apartment in the house of the applicant - not an independent apartment dar.

Since the apartment from the entry of the defendant was on notice of dismissal to a separate apartment, were the conditions of facilitated termination under § 573a para 1 BGB met at any time. Therefore needed in the instance to law and legal writing controversial question of whether it regards the housing stock on the date of commencement of the tenancy or the date of termination arrives, any decision.

* § 573a BGB: Ease of termination of the landlord

(1) A lease of an apartment in a by owner-occupied buildings with no more than two may terminate the rental apartments and without it one legitimate interest within the meaning of § 573 requires. The notice period is extended in this case by three months.

Case of 17 November 2010 - VIII ZR 90/10

AG Friedberg (Hessen) - Case of 7 August 2009 - 2 C 529/09

LG Gießen - Case of 24 February 2010 - 1 S 239/09

Source: Press Release No. 219/2010 dated 11.17.2010 of the press office of the Federal

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for rent reduction due to surface below with specific reference to the lack of liability specified in the lease apartment size

The Federal Court has decided today that by a reduction in rent due to deviation of the actual living area of the specified in the lease floor space by more than 10% can not be considered, if the parties have clearly defined in the contract that details of the square footage of the rental property is not laying down.

The defendant is a tenant of a dwelling of the applicant in Potsdam. be

Rents "... the following areas: size of the apartment said in § 1 of the tenancy, the right apartment in the attic with 2 rooms, 1 kitchen, bathroom, hall for use as living space, the size of approximately 54.78 m². This information is not due to possible measurement errors to determine the rental property. The spatial extent of the leased thing arises rather from the URL of the leased Spaces. "

The monthly rate of rent was 390 € plus an operating advance of 110 €. The plaintiff asked the defendant to pay back rent and an additional claims from the utility bill for the year 2006. The defendant relies on rent reduction over land below and also has declared with an alleged claim for repayment of overpaid rent the set-off against the claim. In support, it relies on the actual size of the home accounting for only 41.63 square feet. The district court on the basis of expert opinion, an actual Living area of 42.98 square meters used.

The district court held the reduction in principle justified and upheld the action to be small in height. The Court of Appeals on appeal by the applicant denied a rent reduction due to living space below and sentenced the defendant to any further payment.

directed against the revision of the defendant was unsuccessful. Who among other responsible for the Housing Tenancy Eighth Civil Division of the Federal Court decided that due to the contracts given to a reduction of rent because of a lack of living space leading divergence of more than 10 % Is forthcoming, because the data is not the size of the apartment in the rental agreement of the parties - as is regularly the case otherwise - to be regarded as binding agreement. Rather, the parties have expressly provided that the disclosure does not serve the square meter for determining the property let, to arise, the spatial extent of the leased property but from the statement of the leased premises. In this respect, this is no mangelbegründende surface deviation.

Judgement of 10 November 2010 - VIII ZR 306/09

AG Potsdam - Case of 6 October 2008 - 24 C 293/07

LG Potsdam - Case of 29 October 2009 - 11 S 200/08

Source: Press Release No. 212/2010 dated 11/10/2010 the press office of the Federal

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right of retention due to defects of the dwelling requires prior deficiency indication.

The Federal Court has today ruled that the tenant because of a lack of housing, of which the landlord has no knowledge of retention can claim only to the rents that are due after the tenant to the landlord the lack have occurred.

The defendants are tenants of an apartment of the plaintiff in Berlin-Zehlendorf. They paid for the months April, June and July 2007 and in May 2007 not only part of the rent. By letter dated 5 June 2007, the plaintiff said the dismissal due to late payment. The defendants objected to the dismissal by letter dated 14 June 2007, an indication of a mold infestation in several rooms.

The plaintiff seeks his action, including evacuation and surrender of the apartment. The district court has upheld the eviction action. The district court has amended the first-instance verdict, and the eviction rejected, it has meant that tenants are not paying the rent in default, because they have allowed notwithstanding the absence of indicator of mold a right to eliminate this defect and they could rely on a consequent end to withhold the payment of rent .

directed against the revision of the plaintiff was successful and resulted in restoration of the first instance eviction appeal. Who among other responsible for the Housing Tenancy Eighth Civil Division of the Federal Court held that a lien on the defendant's rental payments to them for a period prior to the display of - the landlord not previously known - mold infestation of the home debt, can not be considered. The lien of § 320 BGB * is used to the debtor (in this case the landlord) to exert pressure to fulfill its obligation. As long as the owner of a deficiency is not known, it may not satisfy the lien to it's function, causing the owner to remove the defect. A retention of the tenant is therefore only after the notification of the defect due for rent.

* § 320 BGB: defense of breach of contract

(1) Who made a mutual agreement is required, the performance owed by him to refuse to effect the return, unless he is obliged vorzuleisten. (...)

Judgement of 3 November 2010 - VIII ZR 330/09

AG Schöneberg - Case of 5 December 2007 - 12 C 368/07

LG Berlin - Case of 6 November 2009 - 63 S 8.17

Source: Press release from 11/03/2010 the press office of the Federal

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