it would be impossible to prove if the court has found the Neighbour’s claim admissible in previous proceedings, thereby recognising the Neighbour’s procedural right to challenge the permit.106
Question 26: State and Characteristics of the House (Guarantees)
L rents an apartment to T. T wants to diminish the rent because a) Stains of mildew have been found in some corners.
According to article 230 of the LCO, the landlord is obliged to deliver the property to the tenant in an appropriate state for use, unless otherwise agreed.
If the property is not in such an appropriate state, the tenant may either require the landlord to make repairs, or claim a proportionate reduction in the rent. He may alternatively seek to rescind the contract. However, rescission will not be admissible if the breach is immaterial to the tenant's interest. In all cases the tenant is entitled to compensation for damages.
If stains of mildew appear following the conclusion of the contract, the tenant shall be entitled to pursue the various claims outlined.
Variant 1: By letter, T asks L to renovate the walls affected by mildew within 2 weeks. As T does not reply, T has the repair done by a specialist and wants to off-set the costs from the monthly rent rates. Is this lawful?
The LCO explicitly entitles the tenant to off-set the costs of repair work, if he himself makes the repairs with due diligence. Case law confirms that the tenant is entitled to carry out repairs himself if the landlord has not done so after having been encouraged to do so by the tenant.107 This solution can be deduced also from the general provisions relating to non-performance, according to which if the obligation is for performance of an act that can be performed by another person, the creditor shall be entitled to request permission to perform that act at the debtor's expense 108
However, one should note that repairs must be made with due diligence. This implies that the Tenant may not spend more than what the diligent person would spend. He would not be able to claim or to off-set excessive expenses.
Variant 2: T did not discover the mildew stains when inspecting the house before entering into the contact, even though these had already been present. Does this preclude her from claiming a rent reduction?
Article 230 of the LCO discharges the landlord from liability for any defects in the property, which the tenant was made aware of, or which he could easily detect if he had been normally attentive upon entering into the contract. As such, the solution would be contingent upon the concrete facts of the case - i.e. how noticeable the stains were at the time. If the tenant can prove that that they were not sufficiently noticeable so that even a reasonable person could not have detected, them he/she will be entitled to a proportionate reduction in the rent.
106The Court might have rejected the claim as unfounded, but have found it to be admissible.
107Decision 6- 55 OS.
108Article 80 (1) LCO.
It should be pointed out, however, that the LCO does not exonerate the landlord from liability under any circumstances, if the defects of the property endanger the health of the tenant or members of the household. The latter rule applies irrespective of whether the tenant knew or could have detected the defects had she paid normal attention. Thus, if T can prove that mildew endangers T's health and the health of members of T's household, T will be able to claim a rent reduction.
a) A noisy building site for a big road is opened by the city administration next to the apartment.
A building site for a major road can be opened only if the rules on noise pollution are met. Therefore, the presumption in this scenario is that the noise is within the admissible norms. In my view the subjective assessment of the tenant cannot be decisive. It is true that the landlord is under an obligation to ensure undisturbed use of the apartment. It is also true that the comfort of the tenant would be reduced due to the noise. However, the solution in this scenario cannot be equated with the solution under
(a). The noise is not a defect of the property. Moreover, the inconvenience, resulting from the noise is irreparable, because it results from a lawful act. Thus, the solution under (a) is inapplicable.
The tenant would be able to hold the landlord liable for non-performance if the noise is so unbearable that the apartment cannot be used for living purposes i.e. the apartment cannot be used for the purpose it has been rented for. However, objective criteria would be invoked to determine whether the noise is admissible.
In view of the above, I am likely to take the position that in the absence of an explicit stipulation determining the degree of noise that the Tenant is willing to bear or in the absence of any stipulation suggesting that the conditions of the noise were so important to the tenant as to be decisive in his entering into contract, the tenant would not be able to claim a reduction in rent.
b) The tenants of the neighbouring apartment in the house have repeatedly and despite T’s complaints organised loud nightly parties from 11 p.m. to 5 am.
The Regulation on management, order and control in condominium establishes rules which all inhabitants of shared buildings ought to comply with. One of the provisions reads that the inhabitants may not perform in their apartments, activities that may cause abnormal disturbance for other residents. The General Meeting of the owners of the Building makes all decisions relating to the management, control and order of the building. The management decisions are entrusted to a board of the condominium or to a manager. Article 235 of the LCO provides that if tenants fail to comply with the rules of the Regulation they may be evicted from the rented premises upon a motion of the Board of the condominium.
Thus, the tenant may complain to the Board of the condominium. The latter may first decide to warn the noisy tenants or to impose a penalty. If the tenants persist in failing to comply with the rules of the condominium, the Board may propose an order for eviction be made to the regional court.