Rental agreement, rectification of defects
March 16, 2011 | 50,00 EUR | answered by Jan Wilking
Dear Sirs,
Attachments are enclosed!
Since November 1998, I have been living in an apartment that was originally given to me rent-free by my grandparents for my use. There is an agreement in place regarding this (attached). I only had to cover the utility costs.
Two years ago, my grandmother passed away, and since then my father became the owner. There was no change in the agreement at that time.
In December of last year, I received a letter from the property management company stating that the rent-free status will be revoked as of January 1, 2011. Due to personal reasons, I was unable to move at short notice, so I accepted this and started paying the required rent from that point on.
I have now given notice to move out at the end of May. In response, I received a letter from the property management company stating that I must return the rental premises in the "contractually agreed condition" and ensure that "I have fulfilled my obligations under the tenancy agreement" Otherwise - as is usual - performance will be rejected and damages claimed for non-performance after the notice period expires. Additionally, I am told that I will be liable for lost rent resulting from any delay in re-renting the property due to "non-contractual return" (see attachments).
I have been living in the apartment for 13 years. The apartment is in need of renovation and is not likely to be rentable in its current state. I have informed my father and the property management company about this. My mother has also brought it to my father's attention.
There is mold due to water damage from a leaky roof (it is a top floor apartment). I informed the property management company last year about the water damage with mold in the apartment. The laminate floor is also affected and has warped. The property management company has since arranged for the roof defects to be repaired. However, they have not taken any action regarding any defects in my apartment resulting from this.
Now my question - has a tenancy agreement actually been established (possibly through my tacit behavior of staying in the apartment and paying rent)? (There are defects in the form of no written contract). If so, from when - the start of my payments? Do you see any opportunities to challenge this?
If yes, can I argue that the defects were already present at the time the tenancy agreement was established (potentially from January) and the manager and owner were aware of these defects? (they arose during my rent-free period), Or is it better to say that the damages (and these are by far not all) were reported last year and the apartment was still not repaired, leading to the damages?
Do you see any other ways to avoid having to pay for the defects and potentially for lost rent?? Thank you very much!!
Dear inquirer,
I am happy to answer your inquiry, taking into account the facts you have provided and your input as follows:
The agreement between you and your grandparents can be considered a rental agreement. It does not matter how the parties have named the contractual relationship. The characteristic of a rental agreement is that the landlord allows the tenant to use a property in exchange for payment. This payment can also consist of providing services, covering operating costs, or paying a one-time fee.
The death of a landlord does not grant any special rights to either the tenant or the heirs. If the landlord passes away, the rental agreement continues with the landlord's heirs under the same conditions, according to § 1922 of the German Civil Code (BGB). Therefore, if your father is the heir, he has entered into the rental agreement as the landlord instead of your grandparents. However, this does not create a new rental agreement (which, by the way, does not require a specific form). Therefore, a unilateral adjustment of the rent is not possible. Rather, the request for rent increase is likely a change termination, meaning the termination of the previous contractual relationship and the offer of a new rental agreement, which you have implicitly accepted by paying the rent and continuing to live there (as mentioned, a rental agreement does not require a specific form). Since no specific agreements were made, the legal regulations regarding rental agreements apply to this rental relationship.
According to § 535 I S. 2 BGB, the landlord is obligated to provide and maintain the rental property in a contractual, i.e., free of defects, condition. If defects occur in the rental property, it is the landlord's responsibility to remedy them promptly. He is also responsible for damages that arise due to a failure to address the defects. However, this is only different if you did not report the defect promptly and the landlord was not already aware of the defect from another source, according to § 536c BGB.
The landlord's obligations under § 535 BGB also include the regular maintenance work (renovations) that needs to be done. Only if a rental agreement effectively transfers this obligation to the tenant, does the tenant have to carry out these works or bear the costs. This only applies to works that typically arise from the normal use of the rental property. If, on the other hand, renovations need to be carried out as compensation because the tenant has negligently damaged something, the tenant must compensate the landlord/owner for this.
Therefore, you would only have to pay compensation if you negligently damaged something in the apartment or if damage occurred because you did not report a defect to the landlord in a timely manner.
I hope this provides you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that I cannot provide a conclusive advice without knowing all the circumstances within the scope of an initial consultation. If you wish for a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all the documents.
Sincerely,
