Area discrepancy

Area discrepancy refers to the difference between the living area of a property stated in the purchase agreement, lease agreement, or property listing and the actual, correctly measured living area. Area discrepancies can have significant legal and financial consequences-both when purchasing and when renting.

Legal Implications When Buying

When purchasing real estate, the living area stated in the property listing or purchase agreement is an essential basis of the contract. If the actual area differs from this, it is considered a material defect within the meaning of Section 434 of the German Civil Code (BGB):

Tolerance limits: The Federal Court of Justice (BGH) has ruled that a deviation in area of up to 10% generally does not give rise to a warranty claim under sales law. Only if the deviation exceeds 10% can the buyer demand a reduction in the purchase price or rescind the purchase contract.

Fraudulent misrepresentation: If the seller knowingly misrepresented the actual area, the tolerance range does not apply-the buyer may then assert claims even in the case of minor deviations.

Reduction of the purchase price: If the measured area is, for example, only 85 m² instead of the stated 100 m² (a 15% deviation), the buyer may reduce the purchase price proportionally by 15%.

Area Deviation in Tenancy Law

Different rules apply in tenancy law:

• Even a deviation of less than 10% may entitle the tenant to a rent reduction under tenancy law if the actual area is significantly smaller than stated in the lease agreement (Federal Court of Justice, 2004 ruling)
• In the case of a deviation of more than 10%, the tenant is entitled to a rent reduction by the corresponding percentage as well as, if applicable, a refund of overpaid rent (up to the statute of limitations: 3 years)

Living Space Calculation - The Correct Method

The correct living space of a property in Germany is calculated according to the Living Space Ordinance (WoFlV) (applies to residential space) or, alternatively, according to DIN 277. The methods sometimes yield different results:

Measurement Method	Typical for	Special Feature
WoFlV	Residential space, social housing	Partial areas (balcony, terrace, loggia) only 25-50%
DIN 277	Commercial properties	All floor plan areas fully included
GIF Guideline	Office, commercial	Specific commercial standards

Common causes of area discrepancies

In practice, area discrepancies arise for various reasons:

Sloped ceilings: Under sloped ceilings, areas with a clear height of less than 1 meter may not be counted at all according to WoFlV, and areas between 1 and 2 meters may only be counted as half. In attic apartments, incorrect measurement here particularly often leads to inflated area figures.

Room Height: Rooms that do not meet the minimum ceiling height requirement for living spaces (at least 2.40 m in Bavaria) may not be marketed as full-fledged living space.

Basements and ancillary rooms: Basement rooms, unheated storage rooms, or bicycle storage areas are generally not included in the living area under the WoFlV, even if they are sometimes mistakenly included by owners.

Wall thicknesses: Depending on the calculation method, wall thicknesses are treated differently. The WoFlV calculates up to the inner side of the exterior walls, while DIN 277 calculates up to the outer edge.

Balconies: According to the WoFlV, balconies are generally counted at 25%; in exceptional cases (particularly high-quality finishes, south-facing location), up to 50%. Many older property listings have counted balcony areas at 100%.

Practical Tip for Property Owners in Nuremberg and Franconia

We recommend that buyers of properties in Nuremberg independently remeasure the stated living area before purchase or have it measured by an expert-especially in older Wilhelminian-style and post-war buildings, where sloped ceilings, low ceilings, or repurposed spaces often affect the correct calculation of living area. In our property listings, we always use the living area measured in accordance with the WoFlV as a basis and transparently point out any measurement inaccuracies. In the event of disputes over living areas in Nuremberg, the Appraisal Committee or a private expert can perform a legally sound measurement. We particularly recommend a recalculation prior to sale for condominiums in multi-family buildings from the 1960s to the 1980s, which were often calculated according to the old II. BV.

Frequently Asked Questions

As a buyer in Nuremberg, when am I entitled to a reduction in the purchase price due to a discrepancy in floor area?

If the discrepancy between the stated and actual living area exceeds 10%. This is the tolerance limit set by the Federal Court of Justice (BGH) under sales law.

Does the balcony count toward the living area?

Yes, but only proportionally. According to the German Living Space Regulation (WoFlV), a balcony is generally counted as 25-50% of the living area, depending on its features and orientation. A covered balcony (loggia) is often counted as 50%.

Does the seller have to guarantee the property’s square footage?

Not automatically. The square footage listed in the property description is usually an “approx.” figure without guarantee. If the square footage is to be bindingly guaranteed, this must be expressly agreed upon in the purchase contract.

How much does a professional living space measurement cost?

A certified measurement by an expert typically costs between 150 and 400 euros, depending on the property’s size and the provider. This investment is money well spent-especially when the purchase price is in the six-figure range and a 10% discrepancy in area can amount to thousands of euros.

What are the consequences of a floor area discrepancy in ongoing tenancies?

If a tenant discovers during an existing tenancy that the actual living space is smaller than stated in the lease agreement, they have the right to retroactively reduce the rent and reclaim any overpaid rent-provided the discrepancy exceeds 10%. The statute of limitations for claiming a refund is three years from the date the tenant becomes aware of the discrepancy. For an apartment with a contractually agreed area of 80 square meters and an actual area of 70 square meters (12.5% discrepancy) and a net rent of 900 euros per month, the tenant can claim a monthly reduction of approximately 112 euros and, within the statute of limitations, claim refunds for up to three years-which can amount to over 4,000 euros. Landlords in Nuremberg who are unsure about the correct calculation of their properties’ living space should have them professionally measured before renting them out. Especially for apartments built between the 1960s and 1980s, which were originally measured according to the Second Calculation Ordinance (II. BV), the old area specifications often differ from today’s WoFlV calculation. A proactive floor area check protects against future rental disputes.

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