Property owner liable for fire damage to neighboring house

Innocent until proven guilty does not protect against punishment

A ruling by the Federal Court of Justice (BGH) in February of this year caused a stir and sparked much discussion: A property owner who hires a tradesperson to carry out repairs is liable for damages caused to a neighboring building, the BGH ruled. How can a property owner protect themselves from such far-reaching liability?

A couple from Saxony-Anhalt had hired a tradesman to repair the roof of their house. While working with hot glue, the roofer's apprentice caused a smoldering fire under the welded-on sheets of the flat roof, which developed into a smoldering fire by evening. The repaired house burned to the ground.

The fire and the (futile) firefighting efforts also damaged the immediately adjacent neighboring house. The neighbor's insurance company covered the damage and then sought reimbursement of nearly €98,000 from the heirs of the now-deceased owners. There was nothing left to recover from the tradesman: he had since filed for bankruptcy.

"Duty of care fulfilled"

The lower courts had dismissed the insurance company's claim against the heirs, arguing that the clients had fulfilled their duty of care by selecting a qualified tradesperson and were therefore not at fault for the fire. Furthermore, the Magdeburg Regional Court ruled that the tradesperson had acted with gross negligence.

According to the Federal Court of Justice (BGH), this is irrelevant. What is decisive is the claim for compensation under neighbor law pursuant to Section 906 Paragraph 2 of the German Civil Code (BGB). This grants the owner of a property a claim for compensation against the owner of the other property, regardless of fault, if an emission emanates from the other property that the affected owner cannot prevent. More precisely: The fire that spread to the neighboring property constitutes an unlawful interference with the neighboring property, which the affected neighbor could not have recognized and therefore could not have prevented.

"Potential source of danger created"

The impairment must be "at least indirectly" attributable to the will of the owner or possessor. In this case, the will is the commissioning of the tradesman to repair the roof, thereby creating a potential source of danger. It is irrelevant that the defendant, the client, carefully selected the tradesman for whose negligent conduct he is now liable.

“The right to compensation under neighbor law leads to strict liability between neighbors,” criticizes Prof. Dr. Dr. Herbert Grziwotz, notary in Regen and Zwiesel. But what can be done to avoid the risk of being held responsible for a potential error by a hired tradesperson? “Similar to road traffic, where insurance is mandatory, the property owner should ask the tradesperson to provide proof of relevant insurance or take out appropriate insurance themselves,” advises Prof. Dr. Dr. Grziwotz.

Carrying out difficult repairs yourself is not an option, because: "Since the Federal Court of Justice (BGH) has affirmed the liability of property owners when hiring a tradesperson, liability exists even more so if the owner is using a welding machine himself in his free time," warns the notary. The same applies, of course, if he employs an undocumented worker who lacks the necessary qualifications.

Sources: lto.de (Legal Tribune Online), tagesschau.de, detektor.fm, anwalt.de, zeit.de, procontra-online.de, spiegel.de, anwalt.de, juracademy.de