General ban and approval requirement for keeping animals is ineffective
-Keeping dogs in the home
In a ruling dated April 29, 2014 – case no. 226 C 441/13 (not legally binding), the Cologne District Court ruled that a clause in a residential tenancy agreement regarding a general ban on keeping animals is invalid. Dog ownership is permitted in the context of a balancing of interests if the dog does not cause any disadvantages for other residents or the property.
In the legal dispute, the landlord took legal action against the tenant to have the dog removed.
The action was dismissed by the Cologne Local Court with costs. The court stated:
Facts of the case
The parties are in dispute over claims arising from a residential tenancy.
On June 13, 1991, the parties concluded a rental agreement for an apartment in the house V. in K.
§ Section 4 of the contract reads:
“Prohibition on keeping animals. The member undertakes not to keep cats and dogs. No. 7 AVB does not apply in this respect.”
The subject matter of the tenancy agreement is the general contractual provisions, in which the keeping of animals is made dependent on the consent of the plaintiff under Section 7 (1) d). (…) In spring 2011, the defendant took a German shepherd named Z. into the apartment. By letters dated 08.07.2011 and 11.07.2011 (…), the defendant informed the plaintiff that he had taken in the dog because the dog’s owner, the defendant’s mother-in-law, was temporarily unable to keep the dog due to her state of health. In a letter dated October 17, 2013, the plaintiff asked the defendant to remove the dog, which was still being kept in the apartment. The defendant did not comply.
The plaintiff claims that the janitor was repeatedly jumped on by the animal and that the safety of the residents in the building was not guaranteed.
In October 2013, there was an attack on the witness E.. With regard to the cooperative principle of equal treatment, in order to avoid an otherwise occurring disturbance of domestic peace and in view of health risks due to increasing allergies, the plaintiff is pursuing a general ban on dogs and cats in the residential area.
The plaintiff requests that the defendant be ordered to remove the dog named “Z.” kept in the (…) apartment and not to keep a dog again without the plaintiff’s consent.
The defendant requests that the action be dismissed.
He claims that he took in the dog because his mother-in-law was unable to look after the dog due to illness. There are two other tenants in house V. who keep dogs. Other tenants had kept dogs in the property in the past. The other tenants had no objections to keeping dogs.
(…)
Reasons for the decision
(Animal husbandry)
The admissible action is unfounded.
The plaintiff has no claim against the defendant for the removal of the dog kept in the rented apartment or for the defendant not to keep a dog again without the plaintiff’s consent. In particular, such a claim does not arise from § 541 BGB. According to this provision, the landlord can sue for injunctive relief if the tenant continues to use the rented property in breach of contract despite a warning. The keeping of the dog Z. does not constitute use of the rented apartment in breach of the contract.
The prohibition on keeping dogs does not initially result from the prohibition on keeping cats and dogs set out in Section 4 of the tenancy agreement. This is because this provision is invalid as a general term and condition due to a breach of Section 307 (2) No. 1 BGB. A general term and condition in a tenancy agreement for residential premises that obliges the tenant not to keep dogs and cats is invalid due to unreasonable disadvantage to the tenant, as it prohibits the tenant from keeping dogs in any conceivable form and thus also violates the essential basic idea of the landlord’s obligation to grant use under Section 535 (1) BGB.
( BGH, judgment of 20.03.2013, VIII ZR 168/12)
The keeping of the dog is also not to be regarded as contrary to the contract on the basis of No. 7 Para. 1 d) of the General Contractual Provisions. This provision is also invalid. The plaintiff only submitted an incomplete copy of these general contractual provisions before the end of the oral negotiations. However, it is clear from the text passages available that in No. 7 Para. 1 d) the keeping of animals is made dependent on the prior written consent of the plaintiff. If any animal keeping is made dependent on the landlord’s consent in the form, this constitutes an unreasonable disadvantage to the tenant with the consequence of invalidity pursuant to Section 307 (2) no. 1 BGB. This is because the prohibition in this case also covers small animals whose keeping is part of the contractual use of the rented property within the meaning of Section 535 (1) BGB.
(BGH, judgment of November 14, 2007, VIII ZR 340/06)
If there is therefore no effective contractual provision, the answer to the question of whether keeping a dog is part of the contractual use within the meaning of Section 535 (1) BGB requires a comprehensive consideration of the interests of the landlord, the tenant and the other parties involved in the individual case. In particular, the type, size, behavior and number of animals, the type, size, condition and location of the apartment and the house in which the apartment is located, the number, personal circumstances, namely age, and legitimate interests of the tenants and neighbors, the number and type of other animals in the house, previous handling by the landlord and special needs of the tenant must be taken into account.
( BGH, judgment of 14.11.2007, VIII ZR 340/06 )
In the present case, this consideration means that keeping the dog Zappa in the apartment rented by the defendant is part of the contractual use.
Contrary to the plaintiff’s opinion, a balancing of interests does not require the tenant to submit an application for consent to keep animals.
(Cologne District Court, judgment of 09.08.2012, 210 C 103/12)
First of all, it had to be taken into account that the dog kept by the defendant was a German shepherd and therefore a large dog. However, according to the rental agreement, the apartment rented by the defendant is 84 square meters in size, so that there is also enough space to keep a large dog. Special needs of the defendant, for example that he is dependent on the dog for health reasons, are not apparent.
It has not been demonstrated that the dog is a nuisance to the rented property or a disturbance to the other residents. Insofar as the plaintiff claims that tenants have complained about dogs barking and soiling of the stairwell due to hair, this obviously does not refer to the defendant’s dog, but rather the plaintiff reflects her general experience with keeping dogs and cats in rented apartments. This is already evident from the fact that in the next sentence the plaintiff reports on tenants who have installed cat nets. The plaintiff does not claim that tenants were in any way disturbed by the dog or complained about it.
It was also not submitted that tenants with an allergy to dog hair live in the house. The plaintiff has not substantiated that the dog poses a risk to the other tenants or other persons. She submitted that the janitor had already been jumped on several times by the animal or had attacked it in October 2013. A more detailed description of these incidents would have been required. It was not necessary to draw the plaintiff’s attention to the lack of substantiation of her submission, as the defendant had already criticized the submission as unsubstantiated in the statement of defence. In the plaintiff’s favor, however, its interest in avoiding conflicts due to dog ownership in advance and treating the tenants equally must be taken into account. However, in the opinion of the court, this interest weighs less heavily than the defendant’s interest in keeping a dog in the apartment as part of his free lifestyle and development of his personality.
(…)
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