VERDICT
S 36 AS 1541/19
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Jobcenter Northeim,
represented by the management,
Scharnhorstplatz 14, 37154 Northeim
– Defendant –
The 36th Chamber of the Social Court of Hildesheim, in its oral hearing of November 23, 2023, with Judge xxx of the Social Court and Lay Judges xxx and xxx presiding, has ruled as follows:
The defendant is ordered, with the annulment of the decision of 15 August 2019 as amended by the appeal decision of 11 October 2019, to reimburse the plaintiff for repair costs incurred and advanced for the garden shed in the amount of 211.51 euros.
The defendant must reimburse the plaintiff for his necessary extrajudicial costs.
The appeal is not admitted.
FACTS
The plaintiff seeks reimbursement of expenses incurred for roof repairs to his garden shed located on his own property.
In an application dated July 10, 2019, the plaintiff claimed maintenance costs of €211.51 from the defendant for roof repairs to his garden shed. He submitted various receipts and documentation for the purchased materials. The plaintiff carried out the actual repairs himself.
By decision dated August 15, 2019, the defendant rejected the assumption of costs. The defendant reasoned that the assumption of costs for unavoidable expenses for maintenance and repairs refers to the occupied house property and not to any garden sheds or garden houses that may be located on the property.
The plaintiff filed an objection against this, and the defendant, in the confirmation of receipt of the objection dated 18 September 2019, referred to the judgment of the Federal Social Court (BSG) of 7 July 2022 – B 14 AS 51/10 R.
By decision on objection dated 11 October 2019, the defendant rejected the objection on the grounds that the garden shed was not primarily used for residential purposes.
The plaintiff filed suit on November 18, 2019. The plaintiff argues that the garden shed, in need of repair, stands on his property, the roof was leaking, and the space underneath was therefore no longer usable for storage. Section 22, Paragraph 2 of the German Social Code, Book II (SGB II) stipulates that buildings on reasonable property can also be maintained if the reasonableness of the housing costs, measured against a rented apartment, is not exceeded, which is not the case here.
The plaintiff requests
that the defendant, by setting aside the decision of 15 August 2019 as amended by the appeal decision of 11 October 2019, be ordered to reimburse the plaintiff for repair costs incurred and advanced for the garden shed in the amount of 211.51 euros.
The defendant requests
that the action be dismissed.
The defendant continues to maintain that the costs should not be covered, since the plaintiff does not live in his garden shed and the garden shed is not used for residential purposes.
In a notice dated April 14, 2020, the court indicated that the garden shed, being inextricably linked to the property, should be classified as a garage, and that its costs, or the costs of its repair under certain conditions, must also be covered. Reference is made to the notice dated April 14, 2020 (page 17 of the court file).
Due to the short-term illness of the case worker, the defendant, by letter dated November 22, 2023, declared the case worker's non-attendance at the oral hearing and therefore his consent to a decision pursuant to Section 124 Paragraph 2 of the Social Court Act (SGG). This letter was not yet available to the presiding judge when the oral hearing was opened on November 23, 2023, and only came to light during the already opened oral hearing after an inquiry at the clerk's office regarding the non-appearance of the summoned defendant's representative.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the administrative file.
REASONS FOR DECISION
The admissible action is well-founded. The plaintiff is aggrieved by the contested decision, as amended by the decision on the objection, within the meaning of Section 54 Paragraph 2 of the Social Court Act (SGG). The decision is unlawful. Pursuant to Section 22 Paragraphs 1 and 2 of the German Social Code, Book II (SGB II), the plaintiff is entitled to reimbursement of the repair costs incurred for the roof of his garden shed.
Despite the absence of the summoned defendant, the court was able to render a judgment based on oral proceedings, as the defendant had given his consent to a decision without oral proceedings pursuant to Section 124 Paragraph 2 of the Social Court Act (SGG) and had thus waived his right to conduct and therefore also his participation in oral proceedings.
That the present repair costs for the roof of the garden shed are corresponding repair costs within the meaning of Section 22 Paragraph 1, Paragraph 2 of the German Social Code, Book II (SGB II), is particularly evident from the judgment of the Federal Social Court (BSG) of July 7, 2011 – B 14 AS 51/10 R, cited by the defendant in the confirmation of objection dated September 18, 2019.
The Federal Social Court (BSG) states in its guiding principle as follows:
“The costs of accommodation and heating within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) for owner-occupied residential properties include all necessary expenses that are to be deducted when calculating income from letting and leasing pursuant to Section 7 Paragraph 2 of the German Social Assistance Code (BSHG) and Section 76 Implementing Regulation (DV). (Paragraph 12)”
The grounds for the decision state the following:
“If the property in question is a house of reasonable size, the defendant is obligated, in the event of need for assistance, to provide benefits for accommodation and heating in the amount of the actual expenses, insofar as these are reasonable, pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). According to the case law of the Federal Social Court (BSG), the reasonableness of costs associated with the use of property is to be measured against the costs that are reasonable for rented apartments (see in detail BSGE 100, 186 = SozR 4-4200 § 12 No. 10). Reasonable ancillary costs and reasonable heating costs must be added to the reasonable net rent. The actual expenses are to be taken into account up to the sum of these reasonable costs. Accommodation costs for owner-occupied properties include all necessary expenses that are deductible when calculating income from renting and leasing (see Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 22, marginal note [number missing in original text]).” 26). Section 7 paragraph 2 of the Ordinance Implementing Section 82 of Book Twelve of the Social Code (Juris abbreviation: BSHG§76DV § 7) applies accordingly (see judgments of the Senate of April 15, 2008 – B 14/7b AS 34/06 R – BSGE 100, 186 = SozR 4-4200 § 12 No. 10, and of September 19, 2008 – B 14 AS 54/07 R –), insofar as it provides guidance as to which costs are to be taken into account within the framework of Section 22 paragraph 1 of Book Two of the Social Code (see Federal Social Court judgment of February 24, 2011 – B 14 AS 61/10 R – scheduled for publication). On this basis, €94.63 were included in the needs assessment as eligible costs. In view of this amount, a precise determination of the "The abstract reasonable rental costs in the local comparison area and a comparison with the costs claimed by the plaintiff for the use of his own home (cf. judgment of 24.2.2011, loc. cit., para. 20) are dispensed with."
The costs for the necessary repair of the plaintiff's garden shed roof fall under the category of maintenance expenses and are therefore deductible when calculating rental income. If the property, including the garden shed, were rented to the plaintiff under a tenancy agreement, the plaintiff (as tenant) would have a claim against his landlord for repair of any damage to the rented property (e.g., a defective/leaky roof), regardless of whether it was the roof of the main house, the roof of a jointly rented garage, or—as in this case—the roof of the garden shed. The landlord would have to bear these costs and could, in turn, deduct them as expenses when calculating rental income.
The court merely adds that a garage, for which costs must be covered if it is inseparable from the actual (residential) lease agreement within the meaning of Section 22 of the German Social Code, Book II (SGB II), is also not primarily used for residential purposes, so this argument of the defendant is therefore not valid. A garage, like a garden shed, serves for storing or sheltering items. Therefore, in order not to put the plaintiff at a disadvantage compared to a tenant, the rent for the garage (which already includes any repair costs) cannot be covered on the one hand if it is legally inseparable, and on the other hand, these costs cannot be denied if the garden shed is in fact inseparable from the owner-occupied house andproperty.
The decision on costs is based on §§ 183, 193 SGG.
There are no grounds for granting leave to appeal pursuant to Section 144 Paragraph 2 of the Social Court Act (SGG).
The following is information on legal remedies.
