The VIII. Civil Senate of the Federal Court of Justice (BGH) confirmed in its ruling of 24 November 24 (VIII ZR 258/19) the previous Senate case law on rent reduction due to external influences, which the landlord himself must accept pursuant to Sec. 906 of the German Civil Code (BGB). An implied agreement of the parties to the rental agreement to the contrary cannot be affirmed on the grounds that the freedom of the apartment from construction noise regularly becomes the subject of a corresponding agreement of the parties to the rental agreement.
The plaintiffs have been tenants of an apartment in an apartment building since 2011. Starting in November 2017, the defendant’s intervener constructed several residential buildings on a property across the street. The plaintiffs considered a rent reduction to be necessary due to the construction noise affecting their apartment as a result of this construction site and the corresponding dust development.
In its decision, the Senate first states that the existence of a tacit agreement on the “freedom of the apartment from construction noise” can only be affirmed in exceptional cases and in any case requires concrete indications for the assumption of such an extensive liability which cannot be controlled by the landlord. For the assumption of the required mutual agreement of will with regard to an “environmental condition”, it was a prerequisite that the landlord had to recognize from the perspective of the objective recipient’s horizon (Sec. 133, 157 BGB) that the tenant regarded the continuation of this circumstance over the duration of the tenancy as a decisive criterion for the use of the apartment in accordance with the contract, and that the landlord agreed to this. As far as immissions are concerned which have an effect on the rental object from a neighboring property, it must be taken into account that the landlord regularly has no influence on the fact that the conditions existing at the beginning of the rental period continue unchanged during the entire term of the rental agreement.
In the absence of a concrete agreement between the parties on the condition of the leased property, the landlord cannot be unilaterally assigned the risk of a noisy and dirty change of use on a neighboring property. In the absence of agreements to the contrary on the quality of the property, increased noise and dirt immissions by third parties at a later date do not in principle constitute a defect leading to a reduction pursuant to Sec. 536 (1) 1 BGB, if the landlord also has to accept them as unusual or customary in the locality without any possibility of defense or compensation of his own (Sec. 906 BGB); in this respect, the residential tenant participates in the respective situation of the rented property.