Only if the tenant and the landlord agree at the time of the conclusion of the rental agreement that construction noise will not affect the rental object in the future, this will become an agreement on the quality of the rental agreement, which otherwise entitles the tenant to reduce the rent. The assumption of such an, possibly also implied, quality agreement is only likely to be considered in exceptional cases and requires concrete indications that the landlord assumes such a far-reaching liability that is usually beyond his control. This was decided by the Federal Court of Justice (BGH), thus reaffirming an earlier case law on the impact of football pitches or development of gaps between buildings (24.11.2021 - VIII ZR 258/19).
As a rule, it therefore remains the case that noise from neighboring construction sites does not in principle constitute a defect entitling the tenant to a reduction in rent, even if the landlord must accept the noise as insignificant or customary in the locality pursuant to Section 906 of the German Civil Code (BGB) without having any defense or compensation options of his own. In this respect, the residential tenant participates in the respective situational binding of the rental property.
This case law is also important for building owners when neighboring owners demand that they hold them harmless from alleged claims for abatement by their tenants.
For questions on this topic, please contact attorney Dr. Haaß.