The tenant of a ballet school sues her landlord and demands a rent reduction of 10 percent (AZ XII ZR 40/19). In the lease agreement concluded in June 2015, a total gross rent of 4,900 euros was agreed for the commercial premises. The total leased area of the premises is approximately 300 square meters. The contract was taken over by the previous tenant. In a letter dated August 19, 2016, the landlady corrects the floor area stipulated in Annex 1. This is because, following conversion work carried out, the remeasured rental area is around 10 square meters less than that stipulated in the lease.
The letter also contains another correction. The hallway, which is the only access to the neighboring rental unit, was mistakenly attributed to the tenant. The tenant does not sign the new annex to the rental agreement and demands that the landlord reduce the gross rent by 10 percent. In her demand, she refers to the smaller total rental area. At the time of the dispute, the defendant became the owner of the leased property. The action was dismissed by the Munich Regional Court (LG). The appeal to the Munich Higher Regional Court (OLG) was also unsuccessful. This is because even if a rental defect is apparent due to the deviation in area pursuant to Section 536 (1) of the German Civil Code (BGB), this does not in principle justify a reduction in rent.
Only if the rental area shows a reduction of more than 10 percent, a rent reduction applies without further ado. If the area deviates by less than 10 percent, the tenant must first prove that the contractual use of the rental object is impaired due to the reduced rental area. The appeal was also unsuccessful. According to the Federal Court of Justice, the plaintiff did not meet its burden of proof, as it did not prove that it suffered a loss of sales due to the reduced space. Their statement that they can place four ballet students on the ten square meters is not sufficient to prove that the reduced floor space impairs the use of the leased property.
Source: BGH
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