In the present case (AZ 67 S 230/19), the tenants of a rented apartment near Potsdamer Platz in Berlin sued their landlord for payment of rent reduction claims. Due to a large construction site on the neighboring, large property, there were high noise immissions over several months. When the tenants moved into the apartment, the property had not been built on and no specific construction activities were planned. Then, in the summer of 2018, construction began on several properties. These included 92 condominiums as well as 8 townhouses and 2 commercial units.
According to case law, tenants are generally entitled to a rent reduction if noise pollution occurs due to construction work on neighboring properties. This is because the noise immission constitutes a defect in the rented property. Pursuant to Section 535 (1) Sentence 2 of the German Civil Code (BGB), it is the landlord's responsibility to keep the rented property free of defects both upon conclusion of the contract and during the term of the rental agreement. Construction noise caused by a large construction site does not meet the requirements for a defect-free rental property. It does not matter whether the noise pollution originates directly from the landlord or from third parties. However, there would be no entitlement to the rent reduction payment if the tenants had been aware of the planned construction measures when the contract was concluded.
Likewise, there is no claim to a rent reduction if the tenants were unaware of the rental defect due to gross negligence. The defendant landlord is of the opinion that the tenants could have assumed that there may be construction work in the future due to the location of the property near Potsdamer Platz. However, the Berlin Regional Court upholds the plaintiffs and obliges the landlord to pay the rent reduction of 15 percent and interest of 5 percentage points above the respective prime rate between March 2019 and January 2020. It could not necessarily be assumed that the tenants had an idea at the time of moving in that construction work would take place on the neighboring property to this extent. The tenants could just as easily have assumed that the property was owned by the federal government or the state due to its proximity to Potsdamer Platz and that it would, for example, merely be built on for use as a green space.
Source: LG Berlin
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