Real Estate Law09.11.2020 Newsletter

1 December 2020: tenant’s legal right to structural changes for charging points

Background

In their coalition agreement of 2018, the SPD and CDU/CSU agreed to reform apartment ownership law and to harmonise it with tenancy law. Besides reforming the German Apartment Ownership Act [Wohnungseigentumsgesetz, WEG], the aim of the draft law introduced by the Federal Government "to promote electromobility and to modernise the Apartment Ownership Act" is to facilitate the preparation and implementation of structural measures to promote electromobility, among other things. The Bundestag and Bundesrat adopted the draft with a few changes on 17 September and 9 October 2020, respectively. The new regulations therefore come into force on 1 December 2020.

The amendments in the German Civil Code [Bürgerliches Gesetzbuch, BGB] concern the newly introduced § 554 BGB in particular: the provision now provides in paragraph (1) that landlords must tolerate structural changes to the rented property by the tenant "which serve their use by persons with disabilities, the charging of electrically powered vehicles or protection against burglary". § 554 (2) BGB excludes any contractual deviation from this obligation to tolerate that would be disadvantageous for the tenant. According to the likewise newly revised § 578 (1) BGB, these provisions - including paragraph (2) - also apply in commercial lease law!

What are the consequences of the new regulation?

For landlords, the reform initially means a new comprehensive obligation to tolerate:

If the requirements of § 554 BGB are met, landlords must tolerate interventions in the structural substance of the rental property if tenants plan, for example, to set up a private charging infrastructure for electric vehicles. The extent of the structural changes is not limited to simply attaching a charging station to the wall. Rather, tenants can lay cables and interfere with the power supply or telecommunications infrastructure to the extent necessary to make the charging facility usable. Although the costs of this structural alteration must be borne by the tenant and the implementation of the alteration work is also the tenant’s responsibility, the landlord is, however, fundamentally obliged to cooperate in all actions necessary to implement the structural alteration. A contractual exclusion of this entitlement in advance is not possible in view of the prohibition of deviation, which is even applicable in the commercial sector.

However, the landlord's obligation to tolerate is not without limits: § 554 (1) sentence 2 BGB provides for an exclusion of the obligation to tolerate "if the structural alteration cannot be reasonably expected of the landlord, even after taking into account the tenant’s interests". When this is the case cannot be answered in general terms. Rather, a balance of interests must always be weighed up in the concrete individual case. Possible criteria that would speak against a tenant's claim to toleration are, for example, the threat of negative effects of the structural alteration on the landlord's legal relationships with third parties, such as other tenants or neighbours; fire protection issues or charging facilities that have already been made available to the tenants in general. It remains to be seen how the case law will develop. Arguments in the tenant’s favour, on the other hand, are general political considerations of climate protection; the interest in a structural change, which always has to be taken into account individually; and the obligation to provide security pursuant to § 554 (1) sentence 3 BGB.

What is to be done?

Although the costs and implementation are the tenant’s responsibility, a closer look reveals a potential for conflict under the tenancy agreement, which is not addressed in the draft law. Landlords will regularly have a legitimate interest in not leaving the execution of the work to the tenant, but rather of wanting to control the work on the property themselves. Whether the costs incurred can then be passed on to the tenant is not readily apparent from the draft law. The explanatory memorandum is also not very helpful in this respect and makes reference to the general modernisation rules.

Furthermore, the following issues remain open, and in the best case scenario should be settled in advance by the parties:

  • How is ownership allocated and delimited? - Key words: charging facilities as fictitious components?
  • Is the tenant obliged to restore the property or the landlord to pay compensation for its value?
  • Who assumes any necessary adjustments to the remaining structure (admissibility under building law, inclusion in the fire protection concept) and increased operating costs (increased building insurance premium)?
  • Who is liable for malfunctions?
  • How will the claims of several tenants be coordinated with each other?

Overall, the amendment to the law raises a number of issues that still need to be clarified economically, technically and legally, and for which preparations should be made before the new regulation comes into force (1 December 2020).

Practical tip:

The new regulation of § 554 BGB has significant potential for conflict, which needs to be addressed and dealt with. Landlords must be prepared for the fact that, in view of the significance and topicality of electromobility in terms of climate policy, there will be an increasing demand in future to equip existing buildings with the appropriate infrastructure. As the law makes the existence of the claim dependent on a weighing of interests on a case-by-case basis, but leaves other questions that are important to the parties unanswered, there is a need for further regulation.

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Dr. Stefanie Minzenmay

Dr. Stefanie Minzenmay

PartnerAttorney

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 331
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Marc Alexander Häger<br/>LL.M.

Marc Alexander Häger
LL.M.

PartnerAttorney

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 552
F +49 221 2091 333

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Marvin Rochner

Marvin Rochner

Junior-PartnerAttorney

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 435
F +49 221 2091 333

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