Liability bases for landlords in the context of common property
The recent decision by the Federal Court of Justice (BGH, Judgment of June 11, 2024 – VIII ZR 250/23) deals with the liability consequences for landlords of a condominium when an accident – specifically a fall on a commonly used path – occurs. This ruling highlights the importance of care and traffic safety duties in the context of leasing part-ownership and clarifies the scope of the so-called maintenance and protection obligations according to § 535 paragraph 1 sentence 2 BGB. It is also directed at wealthy private individuals, institutional investors, and real estate companies, who can draw preventive and strategic conclusions from both perspectives – landlord and tenant side.
Distinction between common and individual property
The peculiarity of condominium law mandates regularly arises from the separation of private ownership of the respective apartment component and the common ownership of access paths, outdoor facilities, elevators, and other commonly used areas. This division of the ownership sphere significantly affects the areas of responsibility within the framework of rental contract relations:
Access paths as part of the use of the rental property
According to established jurisprudence, the contractual granting of the rental property includes not only the actual living space but also the means of reaching and using it. Therefore, access to a rented object integrally counts as part of the use by the tenant. If this access – for example, in the form of a path that is not cleared or not sufficiently gritted – is associated with hazards and a tenant subsequently falls, questions of liability attribution arise.
Duty of traffic safety and its transfer
Scope of duty circles
Central to the BGH’s decision was the classification of whether and to what extent the duty to maintain the common building and property parts in a traffic-safe condition impacts the individual owner’s contractual relationship with the tenant. It is crucial that, according to the conception of § 535 BGB, the direct dispositive power of the landlord is not necessarily sufficient, but rather the actual possibility to influence safe usability – for instance, through the condominium owners’ association and management.
Assumption and organization of traffic safety in common property
It is common practice that condominium owners, within the framework of the community order and resolutions according to the WEG, delegate the traffic safety duty for common areas to an administrator. However, this internal task assignment generally does not change the rental contract responsibility of the renting condominium owner towards their tenant. Rather, the latter remains obliged to ensure proper safety measures (for example, winter service, gritting measures, cleaning).
Development in supreme court jurisprudence
Tradition and turnaround in the liability regime
Previously, in lower court rulings, it was largely recognized that landlords of a condominium are at least responsible for the traffic safety of common areas when and insofar as the tenant uses these in accordance with their intended purpose. The BGH has now clarified that landlord liability also exists independently of a direct organizational possibility of influence. It does not particularly matter whether the individual owner is themselves responsible for the common property or has access to the actual events.
Consequences for the contracting parties and liability under § 536a BGB
If a tenant suffers damage due to a neglected traffic safety measure on common paths, the renting condominium owner can be held liable under the aspect of so-called “contractual breach of duty”; this particularly includes compensation claims under § 536a BGB. Liability-relieving provisions in the internal relations of the condominium owners do not change this.
Practical implications for investors and entrepreneurial actors
Implications for real estate portfolios and asset management
The ruling has significant implications for asset managers, fund companies, and institutional landlords: The duty of care to monitor and ensure the integrity and safety of the common property parts is a central component of asset management and cannot be bypassed by internal management structures. This results in an increased monitoring and control regime to minimize liability risk in the portfolio.
Complexity of liability relief and risk transfer
In practice, responsibilities for the traffic safety duty are often distributed via contract, house rules, or community resolutions. However, the ruling illustrates that existing agreements neither prevent nor restrict liability towards the tenant. The possibility of recourse in the event of damage with the owners’ association or their administrator depends on the respective contractual and liability parameters and requires precise, context-related evaluation.
Outlook and summary
The Federal Court of Justice’s decision embodies a paradigm shift in the liability understanding for landlords of condominiums and raises awareness among companies, investors, and private asset holders alike about the heightened requirements for the organization and monitoring of traffic safety duties. Central to this is the need to continuously review and develop internal processes and responsibility structures in real estate management to meet the expanded liability standards.
In complex constellations, especially with extensive real estate portfolios or participations in condominium communities, numerous stumbling blocks can arise. For well-founded questions surrounding contractual risk allocation, traffic safety, or asset management processes, consulting a specialized law firm is advisable. MTR Legal Attorneys at Law offer consulting services at all interfaces between tenancy law, condominium law, and private as well as entrepreneurial liability – further information can be found under legal advice in real estate law.
