The Federal Court of Justice (BGH, ruling of 09.02.2018, ref. V ZR 311/16) decided that a property owner who has a craftsman carry out repair work on the house is responsible – i.e. liable – to the neighbour. In the present case, the house had burned down after roofing work due to an embers nest and had damaged the neighbouring property.
Careful selection of the craftsman does not change this liability
The craftsman had not been sufficiently insured – and went into insolvency. The aggrieved neighbour had no chance to have the impairment prevented by an action for injunction, § 1004 I of the Civil Code. This in turn legally opened the way to a claim for compensation under neighbor law, analogous to § 906 II 2 of the German Civil Code (BGB), without any fault being required.
The claim for compensation had been transferred to the building insurer of the neighbour with the settlement of the claim and had given rise to this legal dispute, § 86 I 1 VVG. A household contents insurer or business content insurer could also sue, because tenants and leaseholders are also entitled to claim (BGH, Az. V ZR 389/99). The claim for compensation is subsidiary – other claims for compensation would have priority, e.g. in the case of criminal behaviour by the owner of the house.
A New Year’s Eve rocket is not yet a gross immission
If a rocket strays on New Year’s Eve, the person responsible is not liable (BGH, judgement of 18.09.2008, Au. V ZR 75/08), because the “neighbour-legal property reference” is not given here already because the rocket flew off from the neighbouring property. In the same way, arson lacks the “specific property reference”.
However, liability is assumed for spreading fire, smoke, building dust, soot, extinguishing water, as well as foliage from trees which no longer have to be removed under neighbourhood law because the deadline has expired (BGH, judgement of 27.10.2017, Az. V ZR 8/17). Included are also dangerous property conditions, through a fireplace or storage of dangerous materials, as well as own dangerous work as a do-it-yourselfer or hobbyist. In any case, the immissions must not be those which a neighbour would have to tolerate without compensation because they are reasonable and permissible.
Quasi-liability to risk through judicial law burdens so-called neighbor disturbers
There is no statutory insurance obligation for house and home ownership. Likewise, craftsmen are not subject to any obligation to take out compulsory insurance. If you hire tradesmen, you can ask them about their business liability insurance – and the gaps in cover they contain. Or the owner takes out property liability insurance, which should include this.
Who belongs to the 85% of the population with private liability, could also check if damages caused by his family house with land are already insured. This check can also help to avoid double insurance.
In the end, the tradesman is liable – in the chain first the apartment or house owner
Up to now, many people thought that the neighbour’s building insurer would have been left with the damage, for example if the tradesman as the responsible party had become insolvent and the client was not at fault, for example in the choice of the tradesman. This is because strict liability without fault, as is the case with motor vehicles and livestock owners, does not exist for land and buildings. Now the client of the craftsman is also liable for damages in the neighbour-law relationship under a “quasi-risk liability” for damages in the neighbour-law relationship by way of compensation claim even without fault, i.e. even if the craftsman was carefully selected.
The BGH ruling is not really surprising because the claim for compensation under neighbourhood law had already been decided in this way in the case of fire damage due to defective electrical lines and water damage resulting from a pipe break. Sufficient are disturbances that can actually no longer be averted – i.e. suddenly occurring damage.
Risk of liability for spouses, as well as owners in rem such as tenants, lessees, persons entitled to live
In the present case, the liability also affected the wife of the owner, because she “co-determined the type of use of the property” (Federal Court of Justice, file no. V ZR 308/89). This means that tenants, leaseholders, owners of residential rights etc. must also plan their own insurance cover with similar care – before craftsmen commissioned by them start work.
Gaps in coverage in personal liability ?
In principle, private liability insurance covers legal liability claims. However, the claim for compensation under neighbourhood law has not generally been judged to be a (quasi-)legal liability claim under private law, and thus always insured.
However, the Federal Court of Justice (BGH) (judgement of 01.06.1999, ref. V ZR 377/98) considered damage to assets to be insurable by private liability. A corresponding clause in the conditions would be better, according to which any legal claims under § 906 II 2 BGB are covered.
In private liability insurance, there is an “environmental exclusion”, which is, however, partially waived in the insurance conditions: Damage due to immissions – such as soot – is only partially included as co-insured, which varies from insurer to insurer.
Special features of residential property (WEG)
If it is a building in fractional ownership, with allocation of an apartment for the sole use of one owner, § 906 II 2 BGB does not apply, because the disturbance does not originate “from another property” (BGH, Az. V ZR 137/11).
The same applies in the case of disruptions that emanate from the joint ownership of a WEG to the special property; as well as in the case of two affected tenants within the same property (BGH, Ref. V ZR 180/03).
If the disturbance of special property takes place on adjacent special property within a WEG, there is however a claim for compensation according to § 906 BGB (BGH, Az. V ZR 230/12); whereby this legal claim can also be entitled to adjacent WEG tenants.
In the case of insurance for the account of a third party, the policyholder (UN) is obliged to collect the insurance benefit from the insurer (VR) under a trust agreement with a prohibition of enrichment and to pay it out to the injured party (BGH, ruling of 16.09.2016, file no. V ZR 29/16). VN can be the WEG, § 10 VI 1 and 2 WEG. Insured persons (VP) are the condominium owners with their own individual property and ideal shares in the common property. With the sale of an apartment, the purchaser takes its place, § 95 I VVG. Then the insurance benefit is due to the person who is the owner at the time of the claim.
At best, owners, tenants and leaseholders should enquire whether the property manager has provided insurance cover for all conceivable cases of § 906 II 2 BGB in the building liability insurance.
As a rule, the property manager takes out the liability insurance as a UN, and not as an authorised representative on behalf of the owners (BGH, ruling of 29.04.2009, ref. IV ZR 201/06), because otherwise there would be a (special) right of termination for new WEG owners, § 96 I VVG.
Behaviour after the event of damage?
In case of doubt, the UN that submits to the experts or the expert procedure of the BoD is at a disadvantage. Those UN agencies that can afford independent experts are at an advantage – if necessary also a judicial procedure for the immediate preservation of evidence before starting clean-up work, repairs or reconstruction.
In the case of building insurance, the BoD regularly objects that there is underinsurance. However, this usually does not catch, because the BoD is obliged to provide careful advice and assistance as far as the “building value 1914” is concerned as a benchmark for the amount of the sum insured. The BoD cannot then invoke the duty of an insurance broker to provide advice (LG Itzehohe, ruling of 6 April 2018, ref. 3 O 143/13). In the event of such underinsurance, the BoD then owes its (additional) performance to the UN as compensation for incorrect advice.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.handwerkernachrichten.com (published on 06.11.2018)
and
www.innovationundtechnik.de (published in issue 12/2018, pages 37-38
and
www.pt-magazin.de (published on 07.01.2019)
and
www.internet-Intelligenz.de (published on 08.11.2018)
and
www.dorfzeitung-online.com (published on 06.11.2018)
and
www.juraforum.de (published on 06.11.2018)
and
www.probst-rixen.de (published on 06.11.2018)
and
www.allgaeuhit.de (published on 06.11.2018 under the heading: Federal Court of Justice creates strict liability?)
and
published on 09.11.2018 under the heading How the Federal Court of Justice created strict liability almost from nothing? at
www.submission.de (Submission indicator No 218)
and
www.experten.de (published on 14.11.2018 under the heading: Owners are liable for damages by commissioned craftsmen)
Link: https://www.experten.de/2018/11/14/besitzer-haften-fuer-schaeden-durch-beauftragte-handwerker/
and
www.baugewerbe-Magazin.de (published on 17.12.2018, under title: Property owners are liable for damages caused by commissioned craftsmen)
and
at www.win-verlag.de (published on 06.11.2018 under the heading: Who is liable for damages caused by commissioned craftsmen)
Link: http://www.win-verlag.de/wer-haftet-fuer-schaeden-durch-beauftragte-handwerker
and
on www.bauen-aktuell.eu (published on 06.11.2018 under the heading: Who is liable for damages caused by commissioned craftsmen)
Link: https://www.bauen-aktuell.eu/wer-haftet-fuer-schaeden-durch-beauftragte-handwerker
and
www.immoclick24.de (published on 12.12.2018 under the heading: Who is liable for damages caused by commissioned craftsmen ?)
Link: https://www.immoclick24.de/liegenschaften/recht-gefaehrdungshaftung-fast-aus-dem-nichts/
and
www.handwerke.de (published in Computern im Handwerk, issue 01/02-2019, page 6 + 7 under the heading: Liability for damages by commissioned craftsmen)
and
www.adeba.de (published on 23.05.2019)
and
www.kulturexpress.de (published on 22.02.2019 under the heading: How the Federal Court of Justice created strict liability)
https://www.kulturexpress.de/3332.htm
and
www.vhwg-herford.de/vereinsmagazin (Published in issue “InHerford” 06/2019, pages 19-21)
Link: http://brunsmedienservice.de/temp/ebookvhwgjuni2019/page_1.html
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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