Schork vs. Zirngast: How a Landlord's Law Firm Contradicts Its Own Evidence

degewo knew of asbestos contamination as documented since 2000. This is proven in parliamentary inquiry 14/219: 14,400 apartments affected. Frank Bielka — then State Secretary at the Berlin Senate (and, until 2002, simultaneously Chairman of degewo’s Supervisory Board) — answered this inquiry personally. The legal duty to inform existed since the asbestos ban of 1993 (GefStoffV). The Berlin Regional Court ruled in decision 18 S 140/16: Landlords must inform tenants of known asbestos contamination.

No proof of delivery exists. Even if sent: The 2013 letter arrived one year after the 2012 renovation. By then, the tenant had not only long since removed the asbestos plates but had already ground off the adhesive — the very activity the LKA later classified as the "worst-case scenario". Only from 2021 did degewo first warn new tenants of asbestos danger — 28 years after the asbestos ban of 1993 (Tagesspiegel).

Decisive: Exhibit B3, which Schork herself submits to the court, is precisely this letter — "Important Tenant Information Asbestos" from April 25, 2013. It explicitly warns of "asbestos-containing wall and floor tiles." This proves that degewo knew of asbestos contamination in this exact building (Graunstraße 7). Yet Schork simultaneously claims degewo had no specific knowledge (→ Point of Dispute 11).

Assessment: No proof of delivery. The brochure was allegedly provided in 2012 — but the tenant moved in on February 1, 2012 and immediately began the approved renovation. The brochure would have had to be there on day one. The question remains: Why does degewo approve a renovation in an asbestos-contaminated apartment?

First — The exhibits contradict themselves: The handwritten renovation application by the tenant (Exhibit B1, submitted by Schork herself) shows in black and white: "LAY PARQUET IN LIVING AND BEDROOM (GLUED)". The tenant clearly stated he intended to glue the parquet. You cannot glue parquet onto old laminate — removing the existing covering was the logical and technically necessary consequence. degewo approved this application.

Second — Verbal approval: The tenant also discussed the planned gluing verbally with the responsible degewo employee (Ms. G.). According to Ms. G., degewo could not approve gluing in writing, but if the apartment were improved and a successor accepted the changes, there would be no objections. The same assurance was repeated at apartment handover. degewo knew exactly what was planned — and had no objections because the measure represented a significant improvement. Nevertheless, the later written agreement (Exhibit B2) stated differently: "floating, preferably unglued with click connection."

Third — The permission itself was grossly negligent: degewo built the apartment complex itself. It knew from the start that asbestos had been installed. By 2000 at the latest, this knowledge was documented again when Frank Bielka — then State Secretary at the Berlin Senate (and, until 2002, simultaneously Chairman of degewo’s Supervisory Board) — answered parliamentary inquiry 14/219 and confirmed 14,400 affected apartments. A renovation permission for a known asbestos apartment should never have been issued.

Fourth — Expert opinion confirms: An expert opinion by Ökoexpert GmbH establishes a covering prohibition for asbestos plates. The permission to "lay covering on existing covering" was therefore illegal even by degewo's own account.

Assessment: Schork's argument fails fourfold: (1) The application B1 says "GLUED," not "floating," (2) a verbal permission was granted, (3) the tenant didn't know asbestos plates were beneath the laminate, and (4) the permission was illegal anyway due to the covering prohibition. That Schork submits Exhibit B1 herself and its content contradicts her own argument reveals the quality of the brief.

Section 4 of the agreement (Exhibit B2) warns the tenant exclusively against pipes in walls and ceilings: electrical lines, heating pipes, water pipes. No word about asbestos. No mention of hazardous substances in the floor. No indication that dangerous materials lurk beneath the laminate. RA Zirngast argues in the appeal: The duty to warn should have covered the actual known danger — asbestos.

Section 7 of the agreement addresses removal and disposal obligations. It requires the tenant to "dispose of construction debris at own cost." Whoever expects "construction debris," expects demolition work — not merely laying a floating floor. The agreement itself presupposes that material will be removed.

Assessment: The agreement contradicts itself: Section 3 speaks of "laying on existing covering," Section 7 expects "construction debris." Section 4 warns against pipes but conceals asbestos — even though degewo knew of asbestos contamination. Whoever cites the agreement as evidence against the tenant must also explain the contradictions within the agreement.

The condition of the asbestos plates at handover was not intact. In the built-in cupboard were broken Floor-Flex plates with extensive cracks. Under the wall structure in the living room were plates visible not covered by laminate. Neither the built-in cupboards nor the wall structure are mentioned in the handover protocol (Exhibit B4) — the protocol merely lists the floor covering as "Flex..." without documenting the actual condition.

There are four witnesses who can confirm the damaged condition of the plates. RA Zirngast documented this in his brief of August 19, 2019, offering proof (Exhibit A8: photographic documentation).

Assessment: AG Wedding adopts Schork's claim as "agreed statement of facts," even though the plaintiff explicitly stated the opposite and offered witnesses. The legal aid decision ignores the specific allegation of damaged plates in the cupboard and under the wall structure. Evidence-taking should have occurred in a main proceeding — exactly what the denial of legal aid prevents.

Exhibit B1 (submitted by Schork herself) shows the tenant's handwritten renovation application. It clearly states: "BATHROOM RENEW (REMOVE OLD TILES)". degewo approved this application. Removing old tiles was thus explicitly requested and approved.

Exhibit B2, Section 7 expects "construction debris" — demolition work was thus contemplated. Whoever approves a renovation that generates construction debris and involves removing old tiles cannot subsequently claim it was "property damage."

Assessment: The property damage accusation is refuted by Schork's own exhibits. B1 shows the approval for removal, B2 expects construction debris. The § 303 accusation is an intimidation tactic: The victim of asbestos exposure is threatened with criminal liability because he performed the renovation that degewo itself approved.

Room air measurements are not decisive for asbestos assessment according to Berlin Regional Court case law (66 S 212/18). EU Directive 1999/77/EC is unambiguous:

"To date, no threshold has been identified below which chrysotile asbestos does not carry a cancer risk."

Source — EU Directive 1999/77/EC

The measurement was performed only in March 2019 — three months after the tenant moved out, in an empty, ventilated apartment. No evidentiary value regarding actual exposure in 2012. The expert opinion Wachotsch (Exhibit A7 of the plaintiff's side) confirms the concrete health hazard from grinding work.

Assessment: Calling a documented asbestos exposure during grinding work (approx. 1.2–1.5 million fibers/m³) "speculation into the blue" is cynical. The time-delayed room air measurement has no evidentiary value. AG Wedding's argument contradicts the higher court case law of LG Berlin.

The argument is a classic circular reasoning: degewo doesn't inform about asbestos, therefore the tenant cannot recognize asbestos, whereupon degewo accuses the tenant of not reporting it. In fact, the tenant performed improvement measures — there was no damage to report, only a planned renovation.

How impossible recognition was: The tenant — himself from the parquet flooring industry — consulted a certified flooring expert in 2018 and sent him photos of the exposed tiles and the black adhesive underneath. The expert would not have suspected asbestos. If not even a flooring specialist can identify asbestos from photographs, the expectation that a tenant should have recognized and reported it during renovation is absurd. Asbestos is not visible to the naked eye — this is confirmed by all specialist literature.

Assessment: The question is not why the tenant didn't report. The question is why degewo issued a renovation permit for an apartment it built itself and whose asbestos contamination has been documented since 2000. The duty to inform rests with the landlord, not the tenant. § 536c BGB presupposes that the tenant can recognize the defect. That was physically impossible.

During grinding work on asbestos adhesive, according to specialist literature, exposure is approximately 1.2 to 1.5 million fibers per cubic meter (Bossemeyer et al. 2015; Hiltpold 2014). The tenant was unable to work for one year and underwent psychological treatment. EU Directive 1999/77/EC confirms: No safe threshold exists. The "card" is not a tactic but a documented health hazard.

Assessment: The phrase "asbestos card" is classic victim blaming. A person who, through degewo's gross negligence, inhaled a substantial quantity of asbestos fibers — and who must live for the next 20 to 30 years knowing of the risk of asbestos-related disease — is accused of lacking integrity. Over a rent reduction lawsuit. The firm executes what the client instructs. But the tone of such a brief is carried by the client — and the client is a state-owned enterprise.

Documentation of conversations — including audio recording — serves evidence preservation. The tenant had every reason to document conversations after degewo concealed asbestos contamination for nearly 7 years. The threat under § 201 StGB is a deliberate intimidation tactic: Instead of discussing the content of conversations, the tenant is threatened with criminal prosecution.

Assessment: The accusation diverts from the actual issue. The problem isn't documentation of conversations but their content — namely years of concealment of a health hazard. The § 201 threat joins the pattern of the brief: § 303 (property damage), § 201 (recording), counterclaims — all intimidation instruments against an asbestos-injured tenant.

The tenant sued for €8,680.56 — over nearly 7 years of concealed asbestos contamination. Schork responds with counterclaims of €3,839.53, nearly half the claim. The message: Sue degewo and you risk paying yourself.

This tactic is especially effective in legal aid proceedings: A tenant unable to afford court costs and requiring legal aid is pressured with financial counterclaims.

Assessment: The counterclaims are part of strategic intimidation. Together with threats of § 303 StGB (property damage) and § 201 StGB (recording), the picture emerges: EKSK law firm uses every available lever to pressure the claimant financially, criminally, and psychologically. Financed from public funds, against a single tenant.

Schork refutes herself. As Exhibit B3, she submits the letter "Important Tenant Information Asbestos" from degewo dated April 25, 2013, addressed to tenants at Graunstraße 7 — the exact building in question. The letter explicitly warns of "asbestos-containing wall and floor tiles" and provides specific instructions.

This means: degewo knew building-specifically that Graunstraße 7 contained asbestos tiles. The lawyer for degewo provides with her own exhibit the proof for exactly what she denies. And even this letter came too late: It is dated April 2013 — the tenant moved in February 2012 and had already completed the renovation by then. But degewo knew long before 2013: You don't send such a letter without knowing asbestos is present. Parliamentary inquiry 14/219 from 2000 documents this knowledge.

Assessment: This is the gravest self-contradiction of the entire brief. Exhibit B3 proves building-specific knowledge. Schork denies building-specific knowledge. Both in the same submission. And by degewo's own documentation, this knowledge came one year after the tenant's asbestos exposure.

The legal aid decision of AG Wedding contains substantial deficiencies: (1) It treats degewo claims as undisputed despite being explicitly contested by the plaintiff — particularly the condition of plates at handover, (2) it ignores witness evidence (four witnesses), (3) it relies on a room air measurement which LG Berlin 66 S 212/18 ruled irrelevant, and (4) it ignores contradictions within the agreement (Section 3 vs. Section 7).

LG Berlin requires proof of "concrete" health hazard (BGH VIII ZR 271/17). But precisely this proof — through expert opinion, witness testimony, and medical documentation — can only be presented in a main proceeding. The legal aid denial prevents the main proceeding. A perfect circle: No proof without proceeding, no proceeding without proof.

RA Zirngast in the appeal (January 8, 2020): The decision treats Schork's claims as facts, ignores LG case law on room air measurements, and misunderstands that Section 4 of the agreement warns only of pipes — not asbestos. Section 7 expects construction debris, which presupposes demolition work.

Assessment: The legal aid denial is the decisive lever. Without legal aid, the tenant cannot afford the litigation. Result: A state-owned enterprise, financing a well-established crisis law firm from public funds, blocks an asbestos-injured tenant from access to justice — because he cannot afford court costs. Legal aid exists to balance exactly this asymmetry. Here it failed.