Recht vertieft

News: BGB AT & Tenancy law – Rescission, cancellation and reduction in case of grossly negligent ignorance of rental defects

written and translated by Ali Tahir Sen


Without any enquiries or other expressions of interest by the tenant in the condition of the rented property, the landlord does not have to provide information about this without being asked, so that there is no deception by omission about the actual condition of the rented property. If a tenant fails to inspect a flat before renting it, although there would have been an opportunity to do so, this generally falls within the tenant’s sphere of risk.

It is inevitable that photographs in an advertisement show the flat in a more well-kept condition than the actual condition and it is obvious that precisely no details regarding the concrete condition of the individual furnishings are depicted. This does not constitute an active deceptive act about the condition of the flat.

If the flat is not inspected before signing the tenancy agreement, the tenant is to be certified as being grossly negligent ignorance in the sense of § 536b BGB with regard to asserted defects, provided that these would have been noticed or would have been easily apparent in the course of an inspection.


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On 24 July 2019, M and V concluded a rental agreement for a furnished condominium owned by V with a rental start date of 01 September 2019 and a rent of € 900.00 per month as well as a deposit of € 1,500.00. M and V mutually waived the right of ordinary termination for a period of one year.

On 10 September 2019, M declared the rescission of the tenancy agreement, alternatively the immediate termination and the ordinary termination as well as the contestation due to fraudulent misrepresentation. She justified this with the condition of the flat and the furniture.

V sues at the Lübeck District Court for payment of the (now outstanding) rent debts plus interest. M files a counterclaim for repayment of the rent already paid and the rent deposit. The Lübeck District Court largely grants the counterclaim (judgement of 10.02.2021 – 24 C 1764/20).

In its appeal before the Lübeck Regional Court, V challenges the district court’s assumption of fraudulent misrepresentation on V’s part.

In its judgement of 7 July 2022 (14 S 23/21), the Regional Court of Lübeck first dealt with a claim of V against M under § 535 II BGB for payment of the outstanding rent. A claim for payment of rent under § 535 II BGB can be examined according to the following scheme:

  1. Claim accrued
    1. Agreement according to §§ 145 ff. BGB
    2. Effectiveness of the agreement
    3. Maturity of the rent according to § 556b I 1 BGB
  2. Claim not extinguished
    1. Rescission due to fraudulent misrepresentation under § 123 I Alt. 1 BGB
    2. Withdrawal according to §§ 323, 324, 326 V BGB
    3. Extraordinary termination according to § 543 BGB
    4. Ordinary termination according to § 542 BGB
    5. Reduction according to § 536 BGB
  3. Claim enforceable

In a nutshell, the Regional Court of Lübeck found that a valid tenancy agreement had been concluded for the flat in dispute and that a monthly rent of € 900.00 was due by the third working day of a month in advance.

Subsequently, it deals with the assumption of rescission due to fraudulent misrepresentation according to § 123 I Alt. 1 BGB, which can be examined according to the following scheme:

  1. Rescission due to fraudulent misrepresentation under § 123 I Alt. 1 BGB
    1. Admissibility of the rescission
      1. Priority legal regulations (e.g. §§ 434 ff.)
      2. Rescission of an already void transaction
    2. Ground for rescission (fraudulent misrepresentation)
      1. Deception by omission
      2. Deception through active deceptive act
      3. Bad faith
      4. Causality between deception, error and making of the declaration of intention
    3. Declaration of rescission according to § 143 BGB
    4. Rescission period according to § 124 BGB

First, the Regional Court of Lübeck deals with deception by omitting to inform about the actual condition of the flat:

[…] The concealment of facts only constitutes deception if there is a duty of disclosure with regard to the facts concealed. The legal basis for this duty is § 242 BGB. The decisive factor is whether the other party could reasonably expect clarification in good faith, taking into account the view of the market. In principle, it is up to each party to look after its own interests. Therefore, there is no general duty to disclose all circumstances that may be of importance for the other party’s resolution. Unfavourable characteristics of the subject matter of the contract need not in principle be disclosed without being asked (Ellenberger in Grüneberg, BGB, 81st edition, § 123, marginal no. 5). With regard to the disputed couch, which was decorated with cushions and blankets, there was no fraudulent misrepresentation, because the plaintiff [V] had no duty of disclosure in this respect. Without any enquiries or other expressions of interest by the defendant [M] in the condition of the couch without cushions and blankets, the plaintiff did not have to provide information about this without being asked. The defendant neither made any enquiries of the plaintiff nor otherwise expressed any interest in the condition of the couch without blankets and cushions prior to the handover of the flat, nor are these otherwise apparent. With regard to the other defects complained of, it applies that these would have been sufficiently obvious or easily recognisable during a normal inspection of the flat. […]

LG Lübeck, judgement of 07.07.2022 – 14 S 23/21 marginal no. 23.

However, M – despite two meetings on site – had not inspected the flat. Therefore, the Regional Court of Lübeck states:

[…] If a tenant fails to inspect a flat before renting it, even though there would have been an opportunity to do so, this generally falls within the tenant’s sphere of risk. […]

LG Lübeck, judgement of 07.07.2022 – 14 S 23/21 marginal no. 23.

As a result, the Regional Court of Lübeck therefore denied a deception by omission and continued with a deception by an active deceptive act, for which the excitation or maintenance of an error by pretence of false facts or by suppression of true facts is required (BeckOK BGB/Wendtland, 61st ed. 1.2.2022, § 123 marginal no. 7):

[…] The legal wording of § 123 BGB already requires that the contractual partner has been determined to make a declaration of intent. The advertisement with the photos in dispute […] does not fulfil the requirements of an active deceptive act. The advertisement shows the flat essentially in accordance with the actual conditions. The fact that the flat appears to be in a more well-kept condition than it actually is follows inevitably from the nature of the photographs. It is obvious to everyone that no details are shown regarding the concrete condition of the individual furnishings. The advertisement does not even attempt an incorrect depiction of the condition, for example, by only showing close-ups of particularly well-maintained furnishings, but not pictures of worn-out areas. The advertisement obviously only serves to give a first impression of the flat and its layout. Nor does the fact that the plaintiff had decorated the couch with the damaged areas using cushions and blankets constitute active deception within the meaning of § 123 BGB. As already stated, § 123 BGB presupposes that the defendant was not only deceived by a certain act but also determined to make a declaration of intent. This is not the case here. The defendant had two opportunities to inspect the flat more closely before she signed the tenancy agreement. However, she did not carry out a more thorough inspection before signing. This shows that she did not attach any particular importance to the concrete condition of the flat, at least at that time. However, a person who does not care about something cannot be deceived about this. With regard to the other defects complained of, such as dirty sockets, worn furniture etc., there was also no deceptive act. These things were freely accessible and visible at all times, so that they could have been easily recognised during an inspection of the flat, as is usual before renting a flat. In this respect, too, someone who shows no interest in something cannot be deceived about it.

LG Lübeck, judgement of 07.07.2022 – 14 S 23/21 marginal no. 24.

Accordingly, the Regional Court of Lübeck denied a deception by omission and by active action on the part of V and, as a result, the retroactive nullity of the rental agreement according to § 123 I Alt. 1 BGB.

The LG Lübeck briefly addresses the rescission according to §§ 323, 324, 326 V BGB. A contractual rescission was not agreed by M and V, so that only a statutory rescission can be considered – such a rescission according to §§ 323, 324, 326 V BGB, however, only exists before the rental object is handed over and is then superseded by the right of termination. Due to the “handing over of the keys” there is therefore no statutory right of withdrawal.

The Lübeck Regional Court rejects termination without notice under § 543 BGB both under § 543 II BGB and § 543 I BGB due to the priority of the rights based on defects. They do not justify termination without notice.

However, the Regional Court of Lübeck establishes an ordinary termination pursuant to § 542 BGB from 10 September 2019 to the contractually agreed earliest termination date (exclusion of termination in the first contractual year), that is, 31 August 2020. Therefore, “only” non-settled rent claims from 01 September 2019 to 31 August 2020 are justified.

Subsequently, the Regional Court of Lübeck deals with a reduction due to defects of the rental object according to § 536 BGB, which was not explicitly asserted by M, but occurs by law.

Before dealing with the question of whether there is a rental defect, the Regional Court deals with § 536b BGB. According to § 536b BGB, the tenant is not entitled to the rights under §§ 536 and 536b BGB if he is aware of the defect at the time of conclusion of the contract – at least if the tenant does not reserve his rights upon acceptance. The Regional Court of Lübeck states in this regard:

Insofar as the defendant claims that on the day of the handover of the flat, i.e. on 26 August 2020 [sic! previously the handover is dated 26 August 2019], it complained about several defects and refused to accept the flat in this condition, this is not relevant for the decision. Pursuant to § 536b BGB, the relevant point in time is solely the time of the conclusion of the contract, i.e. in this case 24 July 2019. Since the defendant did not inspect the flat before signing the lease, it must be certified as grossly negligent ignorance within the meaning of § 536b BGB with regard to the defects now asserted by it. Gross negligence exists, namely, if that is disregarded which should have been obvious to everyone or which is readily apparent during an inspection (Weidenkaff in Grüneberg, BGB, 81st edition, § 536b, marginal no. 6). As already stated, the defendant could have inspected the flat. In the course of such an inspection she would also have noticed the defects complained of now, because they were all easily visible. […]

LG Lübeck, judgement of 07.07.2022 – 14 S 23/21 marginal no. 30.

The Lübeck Regional Court only sees this differently for the couch contained in the furnished flat, the defects of which were indisputably covered with blankets and cushions. There was no grossly negligent ignorance in this respect. However, the Lübeck Regional Court denied a reduction because

[…] in any case a reduction of the rent due to the condition of the couch [fails] because the reduction value would have to be set at € 0. The absolute amount of the rent reduction is to be assessed on the basis of the circumstances of the individual case. It depends in particular on the severity of the defect as well as the degree and duration of the reduction of the fitness for the contractual use. If the defect is so substantial that the tenant cannot use the object or can only use it to a limited extent, a complete exemption from rent for the period of time during which the usability of the rented object or individual rooms is practically eliminated comes into consideration (Schmidt-Futterer/Eisenschmid, 15th ed. 2021, BGB § 536 marginal no. 389-390). The wear and tear of the couch is neither a serious defect nor does it impair the usability of the couch in any way. The couch is fully usable. With regard to the visual appearance, it is to be noted on the one hand that it fits into the otherwise existing worn overall appearance of the flat. On the other hand, according to the advertisement, the couch was rented in a condition decorated with blankets and cushions and was also usable with these without restrictions.

LG Lübeck, judgement of 07.07.2022 – 14 S 23/21 marginal no. 30.

As a result, the Regional Court of Lübeck found that rent debts of 10,800.00 € (12*900.00 €) had initially accrued, of which M had already paid 900.00 €. Therefore, a total of 9,900.00 € of rent debts are outstanding, as well as interest for this according to §§ 288 I, 286 II No. 1 BGB. Due to the termination of the tenancy, M’s counterclaim is not completely unfounded – she has a claim for restitution of the deposit (€ 1,500.00) plus interest according to §§ 288 I, 286 III BGB.


written and translated by Ali Tahir Sen


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