Law & Policy

The Renovation Permit That Should Never Have Been Issued

The entire defence of degewo — one of Berlin’s state-owned housing companies — rests on a single sentence: the tenant had breached Section 3 of the “Agreement for Structural Modifications”. This article asks the question that comes before that one — a question neither degewo nor the courts have ever answered: why did this agreement exist at all, for an apartment whose asbestos contamination had long been on the company’s own record?

May a landlord approve a renovation when it knows about asbestos?

No. A landlord who knows that asbestos is built into an apartment must not release it for do-it-yourself renovation. In buildings of this era, asbestos is not only in the floor — it is in wall coverings, tile adhesives, filler compounds. Work on such components belongs in the hands of licensed specialist contractors, with protective equipment, sealed-off work areas and clearance measurements. What was released here: parquet in the living room and bedroom — expressly “(GLUED)” in the application — and a new bathroom, “REMOVE OLD TILES” included; both had been discussed orally, in detail. A landlord who knows about the contamination would have had to refuse all of it and state the reason. The Berlin Regional Court has set out the duties plainly: whoever knows about asbestos must inform — since the German asbestos guideline of 1996 at the latest (case 18 S 140/16). degewo knew. And approved anyway.

A note on quotations: the documents, statutes and rulings cited in this article are German. All quotations are our translations and are marked “(translated)”; the German originals are linked in the sources.

The conversation: “Nobody would complain if we upgrade the living space”

In early 2012, the prospective tenant speaks to degewo — to an employee at its Customer Centre North. He introduces himself as what he is by trade: a parquet dealer. He says what he intends to do: lay a parquet floor, fully glued to the substrate. Full-surface gluing is the most common and highest-quality method in the parquet trade: the floor lies more firmly, sounds fuller, feels more solid. Anyone in the trade lays their own floor that way — and tells the landlord beforehand. That is exactly what he did.

The employee’s answer is documented twice over — in autumn 2018 the tenant described it promptly to a lawyer, before any proceedings began, and in his written account of the case he recorded the conversation in detail. The gist: degewo could not approve glued installation in writing — it could “only give an agreement so that we lay it nicely” (translated). But if he found a successor tenant who took over the apartment as it was, that would be no problem — “nobody would complain if we upgrade the living space” (translated). The same assurance was given once more later, at the handover of the apartment. And for the worst case — that no successor could be found — she named plan B in the same breath: then he would simply have to remove the floor himself again — though that case would surely not arise, since the apartment was, after all, being upgraded.

In plain terms: the paperwork is the formality. What matters is that the apartment is upgraded and a successor tenant takes it over as it is. A green light with a single criterion — and that criterion was economic, not health-related. More than that: for the worst case, the arrangement even priced in the tenant tearing the glued floor out again himself — work on this floor was part of the deal from the start, not a breach of it. Not a word about asbestos. Not a word about danger. Nothing suggests that the employee knew about the contamination — and that is about to become important.

The content of the conversation is documented twice: in the transcript of a legal consultation in autumn 2018, in which the tenant describes what happened, names the employee he spoke to and names his wife as a witness, and in his written account of the case, which records the conversation in detail. As the tenant recalls it, the arrangements were made by telephone and in person at the customer centre on Brunnenstraße.

And the law says: oral arrangements are as binding as written ones — more than that, individually agreed terms take precedence over standard form clauses (Section 305b of the German Civil Code, BGB). The Agreement for Structural Modifications was a pre-printed degewo form. The conversation at the customer centre was an individual arrangement. Anyone who, seven years later, relies on a clause of that form is relying on the piece of paper that legally ranks behind the arrangement.

The papers: the application says “glued” — the agreement says “construction debris”

What had been discussed orally was applied for in writing — word for word. The handwritten application (Exhibit B1, on the form “Approval of Fixture Changes in the Apartment”) lists two items:

1. “BATHROOM RENEW (REMOVE OLD TILES)”
2. “LAY PARQUET IN LIVING AND BEDROOM (GLUED)”
(translated; German original: „BADEZIMMER ERNEUERN (ALTE FLIESSEN ENTFERNEN)“ / „PARKETT IM WOHN- UND SCHLAFZIMMER VERLEGEN (VERKLEBT)“)

degewo did not refuse the application. Five days later it issued the permit — on a second form, the “Agreement for Structural Modifications” (Exhibit B2), same rental-unit number, signed “For the landlord: permission is granted” (translated). Its list of measures follows the application room by room: wall and floor tiles in the bathroom, parquet in the living room and bedroom. Only the installation method reads differently from what was applied for — “floating, preferably unglued with click connection … on the existing covering” (translated).

And that is exactly what had been announced. At the customer centre he had been told that degewo could not approve glued installation in writing; it could “only give an agreement so that we lay it nicely”. So the paper came back just as it had been described. For the tenant it confirmed the arrangement rather than contradicting it.

That also explains why he wrote “(GLUED)” into the application at all, knowing it would not end up on the form that way: he disclosed what he intended to do. Someone who wants to hide something does not write it in brackets on a form he hands to his landlord.

There was no refusal. No follow-up question. No indication as to why glued parquet was out of the question in this apartment — neither orally nor in writing. The only reason ever given was the successor tenant. Never the asbestos.

Four passages of this agreement together tell the whole story:

And the agreement even expressly approved fixed attachments: its own list of measures permits, under items 1 and 2, the “laying of ceramic wall coverings (tiles)” and “floor coverings (tiles)” (translated) in the bathroom — firmly glued fixtures, in black and white. Anyone who reads Section 3 as a ban on any fixed attachment is reading past the very paper that approves fixed attachments (bathroom tiles), settles the question of their disposal (construction debris) and orders their later removal (Section 10). And Section 10 is remarkable for a second reason: exactly this — remove it yourself if need be — was what the employee had named orally as plan B. On this point, the arrangement and the form say the same thing.

For the tenant, the paper was the formality attached to what had been discussed — gluing had been discussed, gluing had been applied for, and what came back was not a no, but a permit. Nothing in the agreement suggested there was something he was not allowed to do: no warning, no prohibition, on the contrary a construction-debris clause that presupposes work on the building fabric, and a removal clause that expressly reckons with firmly attached fixtures.

And one last thing: whoever wants to refuse an application refuses it. To a handwritten application that expressly says “(GLUED)”, the answer would have had to be: this is not granted — and why. That answer never came. What came was the permit. One only has to lay the provisions side by side: whoever expects nothing but floating installation on the existing covering expects no construction debris. The agreement expects it nonetheless: Section 7 obliges the tenant to dispose of the resulting debris off the landlord’s premises. What was approved in the bathroom was new tiles where old ones lay — degewo reckoned with the debris, handed its disposal to the tenant and warned him about the pipes. The tenant drove the asbestos-containing plates to the disposal site in his own car (German). He did not know what he was transporting.

The apartment itself contradicted the clause

One look at the apartment was enough: the “existing covering” in the living areas was laminate — that is how the tenant described it to the expert during sampling, documented at the time: “It was actually laminate in there.” (translated) And nothing can be laid on laminate. Nothing at all: a floating floor on top of a floating floor does not hold, and the added height would have created a step to the tiled areas, a heavy wood-and-glass door would have had to be shortened, connections would no longer have fitted. A parquet dealer sees that at first glance. That is why the real solution was discussed and applied for: full-surface gluing to the substrate — which presupposes that the old covering goes. The form clause described a solution that did not exist for this apartment; the approved application described the one that did.

This apartment had already had asbestos work done — before him

And so to the point that finally dismantles the Section-3 narrative: the 2012 renovation was not the first intervention in this asbestos floor. When the tenant moved in, the hallway and kitchen were already tiled — the Floor-Flex plates there removed, tiles firmly glued down. “The remaining area had already been tiled by the previous tenant,” he wrote to degewo in 2018 (translated). By previous tenants he meant earlier tenants: the friends from whom he took over the apartment directly had changed nothing — he already knew the apartment from their time, and the tiles had long been there. That is not just recollection, it is on record: in the successor-tenant agreement of 2012 — a degewo form — the tenant took over “all fixtures and alterations” in the apartment, “as per the handover protocol of 13 December 2011”; and the same form notes in brackets that these fixtures had “also been taken over by the current tenant” (all translated). So the previous tenants had themselves only taken the alterations over — they date from even earlier tenants; according to the successor-tenant agreement of 2010, the chain of tenants before that goes back to 1984. And in the living room stood a brick-built structure — already there at move-in. When the tenant removed it in early February 2012, it turned out that underneath, the plates had already been removed — exposed adhesive, broken remnants of plates; “that was already open”, as he described it to the expert during sampling (translated). The photo documentation (A408–A410) shows the structure on move-in day — and, a day later, the spot beneath it.

That means: this same apartment had already been partially remediated once — years before 2012, under degewo’s management. Tiles instead of Floor-Flex in the hallway are not a hidden detail; they are the first thing anyone sees who opens the apartment door. degewo saw it too — formally: on 13 December 2011 the (preliminary) inspection of the apartment took place with the landlord, with a handover protocol — already the second within eighteen months, because on 12 August 2010, at the previous change of tenant, the landlord had already viewed and inspected the apartment; a few weeks later its staff stood in exactly this tiled hallway again at the handover — in a building degewo had itself built and fitted out in 1978. From here only two roads lead on, and both end at the same point. Either the earlier work had been approved — in which case degewo had already once released work on the asbestos floor of this apartment. Or it had not — in which case degewo had accepted the altered floor at successive tenant changes without objection. Either way, in this company a worked-on asbestos floor counted as normal: no alarm, no reason to check, no reason to tell the next tenant anything.

What the floor originally looked like could still be seen in the same building in 2018: in an apartment on the same floor of the building, the plates were still everywhere — hallway, kitchen, throughout — with broken patches; photos and video recordings document the condition. Broken asbestos plates, decades old, in an occupied apartment. That was the starting condition of all apartments of this type — also by the logic the expert himself stated during sampling: if the sample from the hallway contained asbestos, “then the rest here will have contained asbestos too” (translated) — the material was installed uniformly, not mixed room by room. He therefore saw no reason to test further rooms.

With that, the last prop of the Section-3 narrative falls. It presupposes an untouched apartment whose floor merely had to be left alone. This apartment had not been untouched for years. In the living room and bedroom, the tenant continued what had been begun in this apartment long before him — visibly, in the first room behind the front door, under the landlord’s eyes. And the clause demanded an installation method that did not work here technically — on a floor that had long since ceased to be in its original state.

What degewo knew at that point

degewo had built the building itself, in 1978 (parliamentary record Drs. 18/20 913). Since the year 2000, the asbestos contamination of its housing stock had been on record — 14,400 apartments, a figure given by a later member of its own executive board (parliamentary inquiry KA 14/219). A neighbour in the same building had received a warning letter about the asbestos-containing floor years before the tenant moved in; a further warning letter to tenants of Graunstraße 7 dates from April 2013 — a year after the renovation (Exhibit B3). Whether that letter reached everyone in the building is not established: there is no proof of delivery, and the tenant in this story, who was living in the building at the time, did not receive it. For the question of knowledge, that changes nothing — whoever drafts a warning letter knows what he is warning about. And since early 2013 the company has had a rule: at every change of tenant, asbestos-containing floor coverings are sampled and removed (Drs. 18/21 259). The knowledge was there — the chronology documents it year by year (German). It was documented and addressed — down to warning letters to individual neighbours. Only the tenant who wanted to renovate in 2012 got none of it.

One hand and the other

Here lies the real finding — and it needs no villain. Nothing suggests that the employee at the customer centre knew about the contamination. Whether the person who signed the agreement knew is not documented. What is documented: the company knew. Maintenance — the department that knows what is built into the floors — kept the record of the contamination; lettings issued the release. One hand approved what the other hand had on file as a hazard.

That is not an excuse; it is the core of the systemic failure: a company organises its knowledge of asbestos in such a way that it does not arrive at the decisive point — where a tenant asks whether he may renovate. A permit for an asbestos-contaminated apartment should never have existed. It existed because the knowledge stayed where it caused no costs.

Would the clause have protected him?

The defence comes down to a conditional: had the tenant complied with Section 3, nothing would have happened. The sentence sounds logical — until you test it.

A clause protects only against a danger its author knows about. Whoever writes “lay floating” without knowing about the asbestos writes a formality — any protection would be coincidence. Whoever writes it because he knows about the asbestos would never have merely enclosed a form clause: he would have refused the application and stated the reason. The defence needs both at once — a clause with a protective purpose and a company without knowledge. In court, degewo’s law firm even claimed there had been “no specific knowledge” of the contamination (translated). Both together do not work: without knowledge, no protective purpose. With knowledge, a permit that should never have been issued.

And even if one plays out the conditional, it fails on its own paperwork: item 1 of the same permit read “BATHROOM RENEW (REMOVE OLD TILES)”. Whoever had complied with everything to the letter would have knocked old tiles out of an asbestos apartment with degewo’s approval — and disposed of the debris himself, as Section 7 required. The supposed protection ended at the bathroom door.

What remains is a dilemma with no way out: either the company’s knowledge of asbestos did not reach the office that issued the permit — in which case the systemic failure is proven. Or it did reach it — in which case the release was knowing. For the tenant it made no difference. For degewo’s responsibility, neither.

No piece of paper could allow this

Up to this point it has been about the contract: what was discussed, applied for and approved, and who knew what. But there is a second level, and on it the contract plays no role. Germany’s Hazardous Substances Ordinance (Gefahrstoffverordnung, GefStoffV) is not addressed to contracting parties but to anyone who lays a hand on asbestos-containing building components. What it prohibits, no landlord can approve and no tenant can validly promise.

In 2012 it applied in the version of 26 November 2010: “Work on asbestos-containing parts of buildings … is prohibited.” (translated) Demolition, remediation and maintenance work was exempted — but that exemption was itself restricted: not for work “that leads to the removal of the surface of asbestos products”, unless in an officially recognised low-emission procedure. And what falls under that, the ordinance says itself: “The procedures that lead to the prohibited removal of asbestos-containing surfaces include in particular grinding, pressure cleaning, brushing and drilling.” (translated) The grinding-off of the asbestos-containing adhesive — the work that took place on Graunstraße — was thus listed verbatim in the catalogue of prohibited procedures, and it was prohibited even if one reads the renovation as maintenance. There was no do-it-yourself loophole: “Paragraphs 1 and 3 also apply to private households” (translated), the same provision stipulated expressly (Annex II No. 1 paragraphs 1 and 4 GefStoffV in the version in force from 1 December 2010 to 22 July 2013).

And the installation method the form prescribed instead did not lead into permitted territory either. A new floor on top of the old plates is a covering-over; the same provision expressly extended the prohibition: “The work prohibited under sentence 1 also includes covering, building-over and raised-construction work on asbestos-cement roofs and wall claddings.” (translated) Floor coverings are not named in that sentence — whether they were covered was not in the text in 2012; the courts answered it later. Prohibited, they held, is “any work on an asbestos-containing part of a building”; mere contact with the hazardous substance suffices (Administrative Court of Arnsberg, 8 November 2018, case 6 K 7190/17; translated); sealing or building over damaged plates and adhesive is “just as hazardous to health as installing them” (Berlin Regional Court, 25 September 2019, case 66 S 212/18; translated) — see our overview of the ban on covering asbestos. Since 5 December 2024, floor coverings have been expressly in the text of the ordinance: firm covering, building-over or raised construction on “asbestos-containing floor coverings” are excluded from the permitted exceptions (Section 11(3) No. 1 GefStoffV). Annex II No. 1 itself was repealed on the same date.

Whether a floating floor laid on undamaged plates is a “firm” covering in this sense has not been decided by any court — we do not claim it here. For this apartment the question does not arise. The expert report prepared in the case found in 2019, under the old legal position: “There is a prohibition on covering firmly bound asbestos-containing materials.” (translated) Before any new covering could be laid, the black adhesive would have to be milled off the screed in accordance with the Hazardous Substances Ordinance and Technical Rule TRGS 519, using an approved low-emission procedure — by specialist contractors registered with LAGetSi, Berlin’s occupational-safety authority.

This was the law on the day the permit was issued. It hung on no signature and no section number. Six years later, degewo would nonetheless fight the dispute over its form clause.

Six years later: the upgrade becomes the accusation

In autumn 2018, degewo confirms the asbestos in the floor in writing. Thirteen days later its legal department writes (German): the tenant had “essentially removed” the plates (translated) — in breach of contract; the company reserved the right to claim damages. Six months after that, the law firm EKSK argues in court that the tenant breached Section 3, and threatens him with the criminal-code provision on damage to property.

Section 3 sits in the “Agreement for Structural Modifications” — the form with the clauses. But there is a second document, and degewo’s law firm itself put it before the court: Exhibit B1, the degewo form “Approval of Fixture Changes in the Apartment”. On it, handwritten, are the two items applied for — and approved: “LAY PARQUET IN LIVING AND BEDROOM (GLUED)” and “BATHROOM RENEW (REMOVE OLD TILES)”. The firm relied on one form — and filed the other, which refutes its account. The sole criterion of 2012, the upgrade, has become the accusation. The tenant who asked and disclosed everything has become the accused.

The question remains

The debate about Section 3 is a diversion — it argues over what the tenant was allowed to do and skips over what degewo did. The mere existence of the permit proves it: the company treated an apartment whose contamination was on record like an uncontaminated one. The right question is not whether the floor was laid floating or glued. The right question is: why was he allowed to start at all? To this day it is unanswered — by degewo, by its law firm, by the courts.

Sources