Germany Update: Balcony power plants – what do landlords have to tolerate and what not?

More and more cities and municipalities, but also the federal government, are providing financial incentives for so-called balcony power plants. Balcony power plants are small solar systems that are connected via a (Wieland) socket and thus enable electricity savings in a technically simple and cost-effective way. The Stuttgart District Court has dealt with the question of whether balcony power plants must also be tolerated by landlords (Az. 37 C 2283/20).

Circumstance

The landlord sued for the removal of a balcony power plant installed by the tenants. Prior to the installation of the balcony power plant, the tenants had repeatedly asked their landlord in vain for the consent required in principle. After installation, the tenants registered the system with their grid operator and insured any risks on the part of the balcony power plant with insurance. Nevertheless, the landlord demanded the removal of the balcony power plant, which is otherwise permissible under building law.

Decision

Among other things, the court dismissed the action, citing environmental protection enshrined in the Basic Law. Consent to the construction of a balcony power plant may not be refused as long as it is permissible under building law, is not visually disturbing, easy to dismantle and professionally installed, does not entail an increased risk of fire and does not represent any other source of danger. Ultimately, a balcony power plant serves not only to save costs for the benefit of the tenant, but generally to “save” energy. Therefore, a balcony power plant is to be assessed as advantageous, taking into account the politically desired energy transition towards renewable energies.

Practical note

However, it is not as simple as it may sound in the judgment of the district court. The increasingly widespread balcony power plants will increasingly occupy the courts in the future. Because the above-mentioned judgment is by no means a “free pass” for tenants.

Even more delicate is the legal situation in the case of condominium owners’ associations: As the District Court of Konstanz (Az. 4 C 425/22) At the beginning of February 2023, it emphasized that at least the threshold for the existence of visual impairments in a condominium association was low. It is sufficient that a balcony power plant installed in the direction of the street is visually striking solely because of its mostly very dark color. However, the (positive) life cycle assessment of a balcony power plant should only be taken into account if there is no visual impairment. Furthermore, balcony power plants are not comparable with the exception in the WEG law for so-called wall boxes, even if they would be installed to charge a vehicle. According to current case law, the end does not justify the means. So as long as no supreme court decision has been made or even the Federal Constitutional Court, as already with satellite dishes, has dealt with the balancing of fundamental rights, the following procedure should be followed: Before investing in a balcony power plant, it should be checked in particular whether optical impairments are possible and, in case of uncertainties, the consent of the landlord or the WEG should be obtained beforehand. The same applies to landlords who are members of a WEG if their tenants want to install a balcony force.

The article was first published in ImmobilienReport Metropolregion Rhein-Neckar.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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