In January 2019, the landlady of an apartment building announced to her tenants that she wanted to install thermal insulation on the exterior facade. The tenants of the building declared that they wanted to tolerate the measures. Since the construction work was postponed, the landlady issued another letter in November 2019, in which she again asked the tenants to tolerate the measures. The construction work was to begin in mid-January or mid-March 2020. The declaration of acquiescence was to be made by December 31, 2019. The grace period was dated January 06.
As the landlady had not received a declaration of acquiescence from the landlords by January 14, she filed a lawsuit (AZ VIII ZB 44/20). The tenants responded to this on the same day as service of the action and submitted a declaration of acquiescence to the legal representative. This was dated December 22, 2019. The tenants also stated that they had sent the declaration of acquiescence by mail in December. The landlady thus declared the legal dispute settled. The Berlin Köpenick Local Court imposed the costs of the legal dispute on the landlady. However, the landlord was of the opinion that the tenants should bear the costs of the legal dispute because it had not received the declaration of acquiescence in good time.
Both the Regional Court and the Federal Court of Justice rejected the landlady's claim. As an explanation, the courts stated that there was no reason to file a lawsuit up to that point. Thus, the demand for acquiescence should have been followed by a reminder first. It should also be noted that the tenants had already given their consent in the first request to tolerate maintenance measures in January 2019. It should also be noted that the tenants were in principle not in default. Because the due date of the acquiescence notice could even be questioned until the start of construction.
Source: BGH
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