Confidential rental condition
April 9, 2011 | 50,00 EUR | answered by Jan Wilking
Confidential rental condition
Dear Sir or Madam,
In mid-March, my partner and I, along with a real estate agent, viewed an apartment that we found on the internet. The apartment is located in a new building which includes four other apartments and is expected to be completed by the end of May. The property can be moved into on the 1st of the following month. All apartments are being advertised by the same agent on behalf of the owner.
The new building is an energy efficiency house 70, which, according to the agent, requires a radio-controlled ventilation system to ensure adequate ventilation circulation in the premises, as the house's insulation does not allow this in conventional ways. Each room with an external wall - except for the guest toilet and storage room - therefore has a circular, CD-sized hole in which a fan periodically directs air in or out, similar to the recirculation function in a car, circulating the air inside and supplying it with fresh air. To ensure a peaceful sleep, it is also possible to reduce the ventilation in the bedroom overnight.
The property suited us so far and at the end of March, we met with the landlord along with the agent to sign a lease agreement. We were also required to sign an additional agreement, which was attached as an appendix to the lease. This agreement stated, among other things, that pet ownership is only allowed with the landlord's consent, etc. It also stated that the tenant was specifically advised to follow the ventilation instructions for the apartment and that a corresponding manual had been provided to him. According to the agent, we would only receive this manual when we moved into the apartment, as it was currently not available. Finally, the appendix included the obligatory statement that the lease would only become valid once the security deposit had been paid.
Due to my allergy to grasses, rye, and mugwort (pollen), I called the agent a week after signing the lease agreement to ask if the ventilation systems had pollen filters installed, as a friend from the construction industry advised me to inquire about this again due to the lack of instructions and the immediate vicinity to fields and meadows. Since this was allegedly only a should, but not a must condition, and some people therefore omit it simply for cost reasons.
After consulting with the appointed plumbing companies, the agent informed me that this was indeed the case and that pollen filters had been omitted. However, he kindly agreed to consult the plumbing company again to determine the costs of a retrofit.
Now to my questions:
1. Must the tenant bear the costs for this retrofit?
2. What is the legal status regarding the non-provision of the ventilation manual?
3. Can I withdraw from the lease agreement within 14 days of signing if I am expected to bear the costs myself in the form of a complete takeover or rent increase?
4. In the agent's terms and conditions, listed on the back of the invoice delivered by mail, it states that the claim for commission remains
Dear inquirer,
I am happy to answer your inquiry taking into account your description of the facts and your input as follows:
Whether you have to pay for the conversion or the landlord has to bear the costs depends on whether an allergy-friendly ventilation system was promised or whether the presence of such a ventilation system can be inferred from the contract negotiations or even from the contract itself. In this case, the lack of a pollen filter would be a defect that the landlord would have to rectify at his own expense. However, if it is permissible for such a ventilation system to operate without a pollen filter and this does not pose a health risk to the average tenant, then this does not automatically constitute a rental defect. Therefore, if you did not mention your allergy during negotiations and no agreements were made regarding this, you may not have a claim against the landlord for a conversion.
Since you signed that you were given the instructions, it may be difficult to derive a claim from this. It would have been wiser to sign the clause only after you actually received the instructions.
You are generally bound by the contract you have entered into, and you are not entitled to a 14-day right of withdrawal since you concluded the contract on-site. An annulment of the contract due to error or fraudulent deception may be considered, for example, if the broker intentionally concealed the lack of a pollen filter from you and this behavior can be attributed to the landlord due to their close relationship.
A commission claim only exists if the broker was commissioned by you for the mediation. Therefore, you owe a commission only after a successful mediation if you have agreed to the takeover in the specified amount. If this is the case and the contract cannot be retroactively invalidated through annulment, then a contract has also been concluded, and the claim has generally arisen. This claim can amount to up to 2 monthly rents plus VAT, with the prevailing view being that rent for garages and parking spaces rented together with the apartment may be included in this calculation. However, the fulfillment of just one task typically associated with property management by the real estate agent, which raises even slight doubts about their independence, puts the broker on par with the manager who is denied a commission claim for property mediation. Given that you state that the landlord relies on the broker in every aspect, this could be a starting point for you.
Unfortunately, the absence of an address does not render the contract invalid. It is sufficient that the contracting parties are determined or determinable, which should be the case here.
In summary:
As there may be several points of attack regarding the rental agreement and the commission claim in your case that cannot be conclusively assessed within the scope of this initial consultation, I can only advise you to promptly engage a specialized attorney on-site to handle the matter.
I hope to have provided you with an initial helpful orientation. If you have any doubts, please use the free follow-up function.
Please be aware that within the scope of an initial consultation without knowledge of all circumstances, I cannot provide a conclusive recommendation. If you desire a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards
