DECISION
In the legal dispute
xxx,
applicant,
Legal representative: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
Respondent,
The 11th Chamber of the Social Court of Kassel decided on April 29, 2014, through Judge xxx as Chairwoman of the Social Court:
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The issue in dispute is whether and, if so, to what extent the respondent has to bear the applicant's extrajudicial costs.
The applicant, born on [date], is currently receiving benefits from the respondent under the Asylum Seekers' Benefits Act (AsylbLG). He is housed in communal accommodation at [address] in [city], with the respondent covering the accommodation costs. Due to traumatic experiences in his country of origin, the applicant has been receiving psychotherapeutic treatment at [hospital name] for some time. Because of his illness, the applicant submitted an application to the respondent on August 22, 2013, requesting permission to move out of the communal accommodation. After initial rejection and subsequent appeal, the respondent, in the context of an action for failure to act (case no. S 11 AY 1/14) pending before the Kassel Social Court, acknowledged the applicant's right to move out of the communal accommodation after the submission of medical documentation. By fax dated January 27, 2014, his legal representative submitted an application to the respondent for approval to rent a 60 m² apartment in xxx (total rent €400.00, base rent €300.00, security deposit €900.00) together with Mr. xxx. The applicant requested the respondent's approval for the move by January 30, 2014.
Regarding this application, a request for preliminary legal protection was filed with the Kassel Social Court on January 31, 2014. Following the submission of a specialist medical report from the xxx Clinic dated January 29, 2014, the respondent stated on February 6, 2014, that, based on this report, he agreed to the applicant's move from communal accommodation to a private apartment. The respondent also expressed his general agreement to the joint rental of the apartment in xxx with Mr. xxx. However, more precise information regarding the rent and heating costs was still lacking. After corresponding statements by the applicant's legal representative on February 7 and 10, 2014, the applicant's legal representative stated on February 11, 2014, that the landlord of the apartment in question had rented it to someone else on February 10, 2014, and that the proceedings therefore had to be declared concluded. At the same time, a request was made to order the respondent to pay the applicant's extrajudicial costs. It was argued that the applicant and Mr. xxx's attempt to rent the apartment failed solely because, despite the applicant's immediate and timely application on January 27, 2014, the respondent had not made a decision regarding the relocation agreement. The respondent apparently erroneously assumed the rent was unreasonable, unaware of the relevant case law of the Federal Social Court (BSG).
The respondent refused to reimburse the applicant's extrajudicial costs. He argued that, in principle, when filing an application for a preliminary injunction, the applicant must demonstrate the validity of the claim and the grounds for the injunction. The applicant should have provided credible evidence that an apartment was indeed available for rent at [address redacted] in [city redacted], for example, by submitting a corresponding statement from the landlord. This, however, did not occur. The application for a preliminary injunction was only received by the respondent on February 3, 2014. The court granted the respondent a one-week period to respond. The respondent had until February 10, 2014, to submit a statement. However, the applicant's attorney declared the proceedings concluded as early as February 11, 2014, even though the respondent had already responded several days before the court-imposed deadline. Furthermore, it should be noted that if the applicant had submitted the specialist medical opinion with the application for approval of the move to xxx, this move would have been approved without the need for expedited proceedings. In any case, the applicant could have waited to file the expedited application until the expert opinion was available. According to the respondent, an expedited application was therefore unnecessary, and consequently, the respondent is not obligated to bear the costs of the proceedings.
II.
The admissible application for costs is well-founded. Pursuant to Section 193 Paragraph 1 of the Social Courts Act (SGG), the court must decide by judgment whether and to what extent the parties must reimburse each other's costs. This also applies in principle to preliminary injunction proceedings, which are decided by order. The court must decide by order upon application if the proceedings are terminated otherwise (as in the present case by a unilateral declaration of settlement) (Section 193 Paragraph 1 Sentence 3 SGG). The SGG does not contain an express provision regarding the conditions under which costs are to be reimbursed. Therefore, the legal principles of Sections 91 et seq. of the Code of Civil Procedure (ZPO) must be considered (see Meyer-Ladewig et al., SGG with commentary, 10th edition, Section 193 SGG, marginal note 13 et seq.). When a legal dispute is settled by a declaration of settlement, the court must apply the legal principle of Section 91a of the German Code of Civil Procedure (ZPO), according to which the question of costs must be decided at the court's discretion, taking into account the previous state of the proceedings and the merits of the case. In the present case, it must be considered that the respondent already stated by fax on February 6, 2014, that, based on the medical report from the xxx Clinic, he consented to the applicant's move from the communal accommodation to a private apartment. In this letter, he further stated, "In principle, there are no objections if the applicant moves into the apartment in xxx, xxx, together with Mr. xxx. However, due to the vague information in the application of January 27, 2014, we request clarification as to whether the basic rent of €300.00 includes utilities and, if so, which ones. Furthermore, due to the relatively high heating costs, even for a 60 m² apartment, we request information on how the apartment is heated and whether the building has a central hot water system." The court ultimately interprets these statements as an acknowledgment of the applicant's claim, asserted in the expedited proceedings, for approval to rent the apartment at [address] in [city]. Consequently, the respondent is also obligated to cover the applicant's extrajudicial costs. While the applicant was unable to utilize the respondent's initial approval to rent the apartment at [address], as the landlord of that property concluded the lease agreement with two other potential tenants on February 10, 2014, the applicant, contrary to the respondent's assertion, sufficiently demonstrated the grounds for and the claim to the injunction when the application for preliminary legal protection was filed with the Kassel Social Court on January 31, 2014. After all, the respondent was aware of the applicant's health impairments and the necessity of ongoing trauma therapy at the [hospital name] clinic, stemming from the application proceedings, pending since August 2013, for approval to move out of the communal accommodation in [city]. Although the applicant only specified the concrete rental opportunity for the apartment in xxx on January 27, 2014, he did, in particular, provide the key details regarding the amount of the accommodation and heating costs, as well as his intention to move into the apartment together with another current resident of the communal accommodation. The respondent's hesitant processing of the application after its submission on January 27, 2014, necessitated judicial intervention on the matter starting on January 31, 2014. The respondent granted his general approval for the rental on February 6, 2014, although, misjudging the issue of appropriateness when the apartment is occupied by a two-person shared household, he raised further questions regarding the amount and appropriateness of the accommodation costs. Particularly in light of the Federal Social Court's jurisprudence on the appropriateness of accommodation costs when a shared apartment is occupied, the respondent could and should have readily granted unconditional approval for the rental of apartment xxx on February 6, 2014. Given these circumstances, it is justified to order the respondent to bear the applicant's extrajudicial costs, i.e., the costs of the applicant's legal representative. The fact that the landlord rented the apartment to someone else on February 10, 2014, thereby concluding the proceedings, is solely attributable to the respondent.
The decision is unappealable pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG).
