Owners and Liability
In a decision of 18 December 2020 (case no. V ZR 193/19), the Federal Supreme Court (BGH) found that the renting owner (in this case also part owner) is not liable as a "Zustandstörer" if the damage originates from a component or device owned by him, but is solely attributable to a negligent or intentional act of the tenant. Only if it should be established that the condition of the component or device was not proper and may at least have been causative for the occurrence of the damage, the damage may (also) be attributable to the owner in an evaluative consideration.
This decision was essentially based on the following facts:
A building was divided into two condominium units. One unit housed a catering business, while the other unit was rented out to run a dental practice. Shortly before Christmas - the outside temperatures were -20 degrees Celsius - a cold water pipe broke in the dental practice. Water damage amounting to several EUR 10,000.00 occurred in the neighbouring unit used for gastronomy. The plaintiff building insurer of this unit now demands compensation for the settled damage from the owner of the other unit.
As a result, the Federal Court of Justice denied a claim for compensation under neighbourhood law on the basis of the known facts. The Federal Court of Justice held that, according to the established case law of the Federal Court of Justice, a claim for compensation under neighbouring law irrespective of fault can exist in principle. According to the court, this is the case if unlawful encroachments on another property emanate from a land register in the context of private economic use, which the owner or occupier of the affected property does not have to tolerate, but for special reasons cannot prevent according to § 1004 para. 1, § 862 para. 1 BGB. This only applies if the owner/occupier suffers disadvantages that exceed the reasonable extent of an impairment to be accepted without compensation (cf. Senate, judgement of 09.02.2018 - V ZR 311/16, NZM 2018, 224, marginal no. 5 with further references). Beyond the wording of Section 906 (2) sentence 2 BGB - according to the BGH - disturbances caused by so-called gross emissions such as water are also covered (cf. Senate, Judgment of 25.10.2013 - V ZR 230/12, BGHZ 198, 327, marginal no. 7).
Such a claim can also be considered (in corresponding objection to § 906 (2) sentence 2 BGB) if the use of the condominium is impaired by unlawful interference emanating from rooms in the condominium of another condominium owner (BGH loc. cit.).
The decisive factor for the owner's liability is whether there are factual reasons that make him or the owner (tenant) responsible for the event. Thus, it depends on whether the owner or occupier of the property is responsible for the dangerous condition of his or her property, i.e. whether he or she has caused the disturbing condition in an attributable manner. According to the Federal Supreme Court (BGH), essential attribution criteria are, inter alia, the instigation, the control of the danger or the drawing of an advantage (see BGH judgement of 9 February 2018, file no. V ZR 311/2016; NZM 2018, 224, marginal no. 7.f with further references). Such factual reasons exist, for example, if water gets onto the neighbouring property as a result of a burst pipe or if a house catches fire as a result of a technical defect of its electrical equipment or wiring (BGH, judgement of 11 June 1999 - V ZR 377/98, BGHZ 142, 66, 70; judgement of 01 February 2008 - V ZR 47/07, NJW 2008, 992, 993).
However, the owner of the rented property is only liable as the party responsible for the condition if it is established that the condition of the component or appliance was not proper and may have been at least partly responsible for the occurrence of the damage. He is not liable if the damage originates from a component or device owned by him but is solely due to a negligent or intentional act of the tenant.
In summary, owners (also condominium owners within a WEG) are advised to always check the components or devices owned by them (also and especially if they have been co-rented) for proper construction, professional installation and correct maintenance.
Düsseldorf, the 11 February 2021
Author: Dr. Dieter Jasper
