01.10.2020, updated on 07.03.2023
If there are defects that make the living space uninhabitable, several claims of the Home Maintenance tenant against the landlord come into consideration:On the one hand, the tenant can reduce the rent by up to 100% and remain in the apartment.On the other hand, the tenant can terminate the rental agreement if special conditions are met – in exceptional cases (see the article “Extraordinary termination without notice by the tenant due to defects In principle, the tenant – as well as the landlord – can terminate the lease extraordinarily if there is an “important reason”, cf. § 543 para. 1 sentence 1 BGB. … (Link: to the article here on the website) Extraordinary termination without notice by the tenant due to defects”). Moving costs, any brokerage commission and the difference between the previous and the new rent must then be compensated by the landlord until the expiry of the notice period.However, it can also be agreed between tenant and landlord that a replacement apartment will be provided. Then rent must only be paid for the replacement apartment if there is a corresponding agreement.
But what applies if a replacement apartment is not provided and/or the provision of a replacement apartment does not make sense (e.g. because a hotel is temporarily occupied)?
Can the tenant then reduce the rent by up to 100% and additionally demand reimbursement of the costs for the replacement accommodation (e.g. for a hotel)?
According to § 555 a conservation measures …(3) Expenses that the tenant has to make as a result of a maintenance measure must be reimbursed by the landlord to a reasonable extent. … (Link: legal text here on the website)§ 555 a Abs. 3 BGB the tenant has a claim for reimbursement of expenses against the landlord. The landlord has to reimburse expenses that the tenant has to make as a result of maintenance measures to a reasonable extent, § 555 a maintenance measures …(3) Expenses that the tenant has to make as a result of a maintenance measure must be reimbursed by the landlord to a reasonable extent. … (Link: legal text here on the website)§ 555 a Abs. 3 S. 1 BGB. On request, the landlord must also make an advance, § 555 a conservation measures …(3) … On request, he shall make an advance payment. (Link: legal text here on the website)§ 555 a Abs. 3 S. 2 BGB.1. Conservation measures
The concept of maintenance measures which the tenant must tolerate includes both maintenance and repair work.
Conservation measures also include the measures that must be taken to make the living space habitable again. This in turn includes the measures that must be taken to remedy serious rental deficiencies and their consequences.2. Expenditures
The expenses within the meaning of § 555 a Abs. 3 BGB, which the landlord has to reimburse the tenant in the execution of the maintenance measures, also include the costs of hotel accommodation or other accommodation, which the tenant temporarily raises as a result of the uninhabitability of the apartment during its repair.
Costs for hotel accommodation, replacement rent and brokerage fees are therefore expenses within the meaning of § 555 a Abs. 3 S. 1 BGB.3. Reasonable scope
Expenses shall be reimbursed insofar as they are objectively necessary. The tenant may not make any unreasonable effort at the expense of the landlord. However, the tenant does not have to choose the cheapest way. In principle, he can maintain his accustomed standard of living.
However, saved rent payments may have to be deducted (see, inter alia, judgment of the Hamburg Local Court of 27 August 2014 (41 C 14/14).
On the reimbursement of hotel costs in addition to a reduction to zero, see a judgment of the www.justiz.nrw.deAmtsgericht Köln of 7 July 2020 (227 C 6/17):Judgment of the AG Köln of 7 July 2020, 227 C 6/17, paragraphs 34, 66 et seq. … In view of the extent of the deficiencies, the court considers pursuant to § 287 ZPO, taking into account the case law issued in similar cases, a reduction to zero and thus in the amount claimed, namely the reduction of the rent for the claimed periods 24.04. to 30.04.2013 = 112.00 EUR, for the month of May 480.00 EUR and for the period 01.06. to 11.06.2013 = 160.00 EUR,i.e. a total of EUR 752.00, is justified. … Additional costs of EUR 9 x EUR 33.89 were incurred for the period from 29.05. to 07.06.2013 and 5 x EUR 26.67 for the period from 07.06. to 12.06.2013. With a gross rent of 700.00 EUR, the cost of daily accommodation is 23.33 EUR. In the period 29.05. to 07.06.2013 the hotel costs amounted to 515,00 EUR = 57,22 EUR/day. From 07.06. to 12.06.2013 250,00 EUR = 50,00 EUR/day were incurred. The difference between hotel costs and accommodation costs (rent) results in the recoverable amount. In addition, there are costs for a parking space of 15.00 EUR. In addition, the plaintiff is also entitled to payment of EUR 320.00 from §§ 536a Abs. 1 2nd case in conjunction with 1922, 1967 BGB for the clearing and clearing of the apartment.4. Relationship between the right to a reduction and the claim for reimbursement of expenses
The relationship between the claim for reimbursement of expenses and the right to reduction has not been clarified by higher court case law. The view expressed here, which is also represented by the Hamburg Local Court, assumes a coexistence of the claim for reimbursement of expenses and the claim for reduction.
In the context of the question of the reasonableness of the expenses, it must then be examined in detail whether and to what extent a crediting of the costs of the replacement accommodation against the reduction is justified.