The Federal Supreme Court (BGH) has clarified in a judgement (case no. VIII ZR 40/19) that not every disadvantageous deviation in area already leads to a tenant's right to reduce the rent.
The case in question concerned a commercial lease for a ballet school. The Federal Supreme Court (BGH) reaffirmed the so-called 10 percent rule. According to this rule, a rent reduction is generally not excluded in the case of a deviation in area of less than 10 % of the contractually agreed rental area. However, the tenant must specifically demonstrate and prove that the rental object used in accordance with the contract is impaired by the deviation in area.
Specifically, the Federal Court of Justice, referring to Section 536 (1) and (3) of the German Civil Code (Bürgerliches Gesetzbuch - BGB), stated that the undercutting of the contractually agreed area by the area actually let to the tenant by the landlord also constitutes a material defect of the rented property if the difference in area is the result of conversion work carried out after the conclusion of the tenancy agreement, as a result of which this area was added to the adjoining rented property. If - according to the Federal Supreme Court (BGH) - in the case of renting business premises the rental area is less than 10% smaller than the area agreed in the rental contract, a rent reduction is not generally excluded. However, the tenant must in any case specifically demonstrate and, if necessary, prove that the contractual use of the rental object is impaired by the deviation in area (continuation of the Senate's decision of 18 July 2012 - XII ZR 97/09, NJW 2012, 3173).
In the specific individual case, the plaintiff, the operator of a ballet school, was not able to prove that the use of the leased property in accordance with the contract had been impaired by the deviation in space. According to the BGH, it was not sufficient for the tenant to claim that she was at an economic disadvantage or had suffered losses due to the lack of rental space. Rather, the tenant would have had to prove in concrete terms to what extent the smaller usable space had impaired her use of the practice room, because she had to turn away pupils because of it, for example.
In practice, it is therefore advisable for every tenant to carefully check whether a reduction of the rent is possible after determining a possible deviation in space. This requires a well-founded justification.
Düsseldorf, February 19th, 2021
Dr. Dieter Jasper, lawyer