Real Estate

Who is liable – landlord or tenant?

Mold in the apartment is one of the most common disputes between tenants and landlords. Whoever causes the mold should also be liable for the damage. But it is not that easy.

Mold in the apartment is a clear lack of rent. However, it is often not clear whether landlords or tenants are liable for the consequences of mold. Tenants who notice mold or persistently damp walls in the apartment should report this to their landlord immediately. It helps to set a deadline for the landlord to repair the damage. Only who has to bear the costs? It depends on the cause.

Mold in the apartment: causes are decisive

For landlords, the culprit is often quickly found: either the tenant has not ventilated sufficiently or the furniture is too close to the walls so that the air cannot circulate. So the tenant had to pay for the damage.

But it is often not that simple. There are also other causes for mold infestation: defective building structure, errors in renovation work or water damage. In these cases the landlord is liable.

To prevent this, tenants should check the walls and check for moisture, especially in spring. Particular attention should be paid to the area around the windows, the corners of the room and the skirting boards.

Right of termination in the event of mold infestation: Tenants have the right to terminate their tenancy without notice if the limit values ​​for pollutants are exceeded and the use of main rooms – such as living rooms, bedrooms, kitchens – is excluded or significantly impaired. This must be conditional and not be due to a previous medical condition or incorrect behavior by the tenant.

Controversial case law: ventilation during working hours

Despite numerous judgments on moisture damage, it has not yet been clarified in case law who has to bear the responsibility and the costs. As a rule, the first step is to clarify whether there is a lack of construction. If this is not the case, it is checked whether the tenant has fulfilled his ventilation obligations. This is where experts often come into play to check whether the mold has formed on the surface or whether it has penetrated the walls from outside due to structural defects.

But what about the tenant’s duty to provide regular ventilation? How often and how long to ventilate depends essentially on the usage habits of the rooms but also on the structural features of the apartment.

The Federal Court of Justice (BGH) commented on this in 2007: According to this, it was reasonable to ventilate the room four times during the day (BGH VIII ZR 182/06). This does not necessarily mean that working people are forced to leave their workplaces regularly to ventilate at home. According to the regional court in Frankfurt am Main, it may be sufficient to ventilate once or twice in the morning and after returning from work and before going to bed (LG Frankfurt am Main AZ 2 -17 S 89/11). A building-related ventilation requirement of six vents, on the other hand, is unreasonable for the tenant, judged by the Berlin Regional Court (LG Berlin Az. 65 S 400/15).

Correct ventilation during the heating period: Ventilation must continue even during the cold season – otherwise the air humidity rises too much and supports the formation of mold. It is best to briefly open the windows completely several times a day and to ensure a quick air exchange with a draft. Under no circumstances should the window be left permanently in the tilt position, as this will completely cool the walls. In addition, ventilation should be provided immediately after bathing or showering.

Mold growth on windows: Landlords can demand appropriate ventilation behavior from the tenant. How often and for how long is judged differently. (Source: Mukhina1 / Getty Images)

Tenants can set up furniture wherever they want

Tenants can react calmly to the accusation by the landlord that the mold in the apartment has arisen because furniture is too close to the walls. The German Tenants’ Association (DMB) refers to a ruling by the Osnabrück District Court that tenants have the right to set up their furniture at will. It was unreasonable to move large pieces of furniture ten centimeters away from the wall – the landlord was responsible for the mold in the apartment.

According to the DMB, tenants from Berlin also got their rights, as a result of mold renovation measures on the windows. The outside walls of the building had poor thermal insulation, making them particularly susceptible to mold in the apartment. The district court in Berlin saw a lack of construction for which the landlord is liable.

Tip: Leave both the washing machine and the dishwasher slightly open during a long absence. This allows the residual moisture to escape from the devices and no mold to form. The machines should also be cleaned regularly – including a rubber seal on the door.

Reduced rent in case of mold: Out-of-court solution

A legal dispute is not always the best and, above all, not an inexpensive decision. The cost risk is reduced for both sides if an expert can find a joint solution.

If the mold damage occurs during a current tenancy, an agreement can be made regarding the heating and ventilation behavior after the mold has been removed. In return for the increased effort, the landlord can grant a rent discount. However, if the tenant is not responsible for the mold, he does not have to agree to a contract change.

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