Reader question: Can the landlord refuse the current rectification of a defect solely because its first occurrence was a long time ago?
A defect in your German flat has existed for years. You are now again demanding its rectification. The landlord replies that more than three years have passed since the first report, and therefore no work will be carried out. For this reply it is decisive which claim you are currently pursuing and whether the tenancy agreement is still in force.
Distinguish between current performance and an old monetary claim
Section 535 BGB also concerns the maintenance of the condition suitable for contractual use during the tenancy period. [BGB535] A claim to remedy the current defect will therefore not automatically be treated like a single long-closed earlier monetary claim.
Note your concrete objective: are you demanding a service that is still necessary today or the reimbursement of earlier expenses or overpaid amounts? This article deals primarily with the current rectification of defects in an ongoing tenancy. Other types of claims and a contract that has already ended require a separate temporal examination.
Legally classify the ongoing maintenance obligation
In judgment VIII ZR 104/09 of 17 February 2010 the BGH classified the claim for rectification of defects during the tenancy as imprescriptible. The landlord's duty is a continuing obligation directed into the future, which during the existing contract is to some extent repeatedly newly incurred. [BGH10409]
The mere reference to the age of the first report therefore does not settle the question of current performance. However, the judgment does not automatically confirm that every improvement demanded today is at all owed. A defect, the correct contractual condition and the concrete responsibility remain to be examined.
Document the current condition in a comprehensible way
Set out the earlier report together with the current condition. Does the same malfunction still exist? Has it changed, has work been done in the meantime or has a new problem arisen? Old photographs do not alone show the present condition; conversely, new images do not replace an erroneously asserted earlier report.
Inform the landlord about the impairment that still actually exists and the necessary next step. The duty to notify under §536c remains a separate question. [BGB536c] The statement regarding limitation is no reason to keep significant changes or a newly arisen substantial defect unreported.
Do not equate estoppel solely with the passage of time
In the same judgment the BGH considered estoppel (Verwirkung) separately. It additionally requires special circumstances of conduct that create a legitimate expectation of future non-enforcement; mere passage of time is not sufficient for this. [BGH10409]
Therefore also present any subsequent agreements and declarations. A potentially relevant arrangement must not be concealed. Likewise, years of silence are not treated solely on the basis of their duration as an already finally confirmed waiver of claims. The specific defence belongs in the examination with its factual content.
Hypothetical case and a specific next step
In the invented case a tenant reported a defect earlier and did not pursue the matter for a time. The malfunction still persists. In response to their new concrete claim for performance only the original reporting date is cited.
The advice examines the current defect, the continuing contract and any declarations on file. The tenant then requests a factual answer to the current rectification question. They do not derive from this an unauthorised unlimited rent withholding nor automatically reimbursement of all past costs. The result is a substantiated current claim to performance with clearly delineated further claims.