GE: Limitation Period in Tenancy Law Begins with Handover

Oct 21, 2022 Benn-Ibler Rechtsanwälte

Any claims for damages on the part of a landlord become time-barred only when the rented property is returned. This is true even if more than 30 years have passed since an incident caused damage in the current tenancy. According to the German Federal Court of Justice (Bundesgerichtshof, BGH), the special provisions of tenancy law on time-barring (six months) shall be deemed conclusive and take precedence over the standard limit. This short period serves the purpose of encouraging landlords to settle any claims for compensation as promptly as possible.

In the case at hand, a landlord sued for damages due to water damage. The tenant had refurbished the bathroom in 1984 by putting in floor tiling and a drainer but without installing the necessary waterproofing. Thirty-two years later, the lack of insulation caused water damage in the flat located directly below, whose ceiling was in danger of caving in.

A plea of limitation was raised against the action for damages. The lower courts each dismissed the action basing their decision on the maximum limitation period of 30 years under Section 199 (3) sentence 1 no. 2 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The damaging action had happened more than 30 years before the claim was filed.

Contrary to the opinion of the Regional Court, the claim for damages asserted by the landlord is not yet time-barred according to the Federal Supreme Court. The provisions of the standard time-barring period cannot be applied in this case, since in this instance the provisions of tenancy law are to be regarded as a definitive special regulation. The six-month limitation period for claims under tenancy law according to Section 548 BGB, however, commences at the time of the return of the rented property. This time limit serves to protect individuals against being held liable for actions that occurred a long time ago and which can no longer be clarified because evidence for any reasonable objections has gone lost. However, this does not justify a parallel existence with the statutory thirty-year limitation period in the scope of application of this special provision.

According to the Federal Supreme Court, there is no limitation of claims in the present case. In the proceedings, the Regional Court did not establish that a return of the flat to the landlord had taken place.

BGH, VIII ZR 132/20 (31 August 2022)