Costs of the preservation of evidence procedure
In court proceedings for the preservation of evidence, the claimant shall bear the costs of the proceedings if he does not bring an action within 3 months despite being requested to do so by the defendant or the party served with notice of dispute.
Costs of proceedings to preserve evidence, correct application for a claim for reimbursement of costs of proceedings to preserve evidence
– Interest in a declaratory judgment
In a legal dispute before the Higher Regional Court of Cologne 2 U 102/13 (1st instance Regional Court of Cologne 18 O 316/10 of 23.09.2013) had to decide on a claim for reimbursement of the costs of proceedings to preserve evidence.
The parties are neighbors of two adjoining properties in Cologne at the addresses L. Weg X (plaintiff) and L. Weg Y (defendant). The defendant carried out construction work on his property to build on the boundary with an accompanying obligation to properly seal the exposed wall of the plaintiff’s house. In the course of this, the building on the defendant’s property was demolished in July 2008 and a new building was subsequently constructed. During the further construction work, the defendant installed a protective tarpaulin from November 2008 to secure the plaintiff’s now exposed boundary wall.
During the construction work, beginning in April 2009, moisture began to appear in the plaintiff’s apartment in the bathroom on the first floor in the area of the adjoining exterior wall of the building in the form of several dark discolored stripes on the false ceiling. As a result, the plaintiff initiated independent evidence proceedings before the Cologne Regional Court (case no. 21 OH 2/10). In the course of these proceedings, the appointed expert K. prepared two written expert opinions on 08.01.2010 and 11.06.2010. As part of his findings at the on-site visit on 19.11.2010, he determined slightly increased moisture levels, which could no longer be determined and had dried up by the second on-site visit on 05.05.2010. In this regard, the expert opinion stated that temporarily increased moisture had penetrated the ceiling construction, which subsequently almost dried out. At the same time, the expert noted an unfinished edge connection, which was subsequently completed by the defendant in addition to the expert opinion. At the defendant’s request, the plaintiff was given a deadline of three months to file a lawsuit in the evidentiary proceedings by order dated October 4, 2010.
The plaintiff claims that the moisture that occurred was caused by the defendant’s construction work. This had led to the moisture damage in the plaintiff’s own bathroom due to a lack of sufficient sealing. In the meantime, the defendant had carried out sufficient remedial work in the form of professional sealing of the partition wall. The expert reports confirmed the ingress of moisture, which was attributable to the defendant’s construction work. Another cause of damage in the form of an alleged burst pipe could be ruled out.
The applicant claims that the Court should,
declare that the defendant was obliged to remedy the defects presented in the independent evidentiary proceedings (Regional Court of Cologne, file no.: 2 OH 11/09) in the statement of 13.08.2009; alternatively, order the defendant to pay the costs of the evidentiary proceedings 21 OH 2/10.
The defendant claims that the slight appearance of moisture on the plaintiff’s wall was not caused by his construction work. According to the results of the expert opinion, a defective pipe cannot be ruled out as a cause either. It could not be ruled out that other components had also been transported with the transported moisture (e.g. clay plaster), which had led to the discoloration. Moisture had not been transported from the defendant’s boundary wall to the plaintiff’s wall construction.
The defendant is of the opinion that the fact that the unfinished connection work was still present unchanged at the second on-site visit and yet the moisture had dried by half the amount speaks against the causality of his construction work. In addition, two other causes of damage (burst pipe and moisture transport in the ceiling area)
The defendant’s admissible appeal is also successful on the merits; it leads to the dismissal of the claim for a declaratory judgment awarded by the Regional Court.
The application for a declaratory judgment is inadmissible. This is because – as the Senate discussed with the parties at the hearing – it lacks the interest in a declaratory judgment required under Section 256 (1) ZPO. In principle, such an interest only exists if a subjective right of the plaintiff is threatened by a current risk of uncertainty due to the fact that the defendant seriously disputes it. This requirement is not met in the case in dispute. This is because the defendant has never denied the obligation to establish the peripheral connection, the determination of which the plaintiff seeks; the plaintiff does not show that the defendant has refused to do so. In dispute and thus the subject of the question in the independent evidence proceedings (21 OH 2/10 LG Köln) was the question of whether – insofar as the lack of sealing was concerned – the lack of sealing was the cause of the moisture damage alleged by the plaintiff; the expert did not establish this. On the other hand, the fact that the edge connection had not yet been established by the defendant was undisputed and, moreover, did not require a determination by an expert.
The decision on costs is based on Section 91 (1) ZPO.
In this context, the Senate would merely like to add the following:
The economic interest of the plaintiff is limited to the interest in costs. Even if, contrary to the above, the action were to be deemed admissible, no decision on costs favorable to the plaintiff would be justified. In that case, the application of Section 93 of the German Code of Civil Procedure (ZPO) would be obvious because there is much to suggest that the defendant already acknowledged its obligation to establish the edge connection in the written submissions of 15 October 2011 and/or 10 October 2013. The action only became more specific in this respect when the Regional Court – without the plaintiff having formulated the application in advance – described the defendant’s obligation in the operative part of its judgment as being directed towards “sealing the boundary wall” and the plaintiff implicitly adopted this formulation as its own by applying for the appeal to be dismissed. “Prior to this, the claim was not sufficiently specific. This is because, apart from the fact that the term “rectification of defects” originates from warranty law, which is not relevant here, it was not sufficiently clear that it was intended to refer to the construction of the boundary connection – and not to the rectification of moisture damage in the plaintiff’s house.
The decision on provisional enforceability follows from Sections 708 No. 10, 713 ZPO.
There is no reason to allow the appeal. The case is not of fundamental importance, nor does the further development of the law or the safeguarding of uniform case law require a decision by the appellate court.
Value in dispute for the appeal proceedings: up to € 9,000
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