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

What the files show

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 German asbestos guideline of 1996 (following the 1993 ban, LG Berlin 18 S 140/16). 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 (as reproduced in the court file). 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. According to degewo’s own letter of April 25, 2013 (Exhibit B3), the brochure “Your degewo Apartment” was not sent until “the end of 2012” (translated). The tenant moved in on February 1, 2012 and immediately began the approved renovation — so the asbestos plates had long since been removed by the time the warning — on degewo’s own dating — went out. At least 10 months lie between the renovation and the brochure. The question remains: Why does degewo approve a renovation in an asbestos-contaminated apartment?

What the files show

Schork argues over the clauses of an agreement that should never have been issued. A landlord who knows that an apartment contains asbestos does not approve a renovation — it explains to the tenant why the renovation cannot take place. The entire discussion of Section 3 diverts from this fundamental question. Why this permit existed at all is traced step by step in the anatomy of a renovation permit. But even on Schork’s own terrain, the argument fails:

First — Her own exhibits contradict her: 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)" (translated). 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." Legally, this is not a mere formality: under German law, individually agreed terms take precedence over standard form clauses (Section 305b of the Civil Code, BGB). This raises the question of whether the arrangement at the customer centre qualifies as such an individual agreement — if so, it would override the form clause. Its written backing is application B1, which expressly records the gluing. degewo disputes this: its legal department wrote in 2018, "Our employees do not, as a matter of principle, make any commitments in this regard, nor are they authorised to do so" (translated). That sentence appears in the paragraph about the successor-tenant question — that is, precisely the subject of the 2012 conversation. But it does not devalue the assurance; it shifts the problem: if customer-centre staff are not authorised to make binding statements, what is a tenant supposed to rely on when he asks there whether he may renovate? And the argument does not need the verbal assurance anyway — the glued installation was applied for and approved in writing.

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 under any circumstances. What is more: the work applied for was expressly prohibited by Germany’s Hazardous Substances Ordinance in 2012 — for private households too; "grinding" was listed verbatim in the catalogue of prohibited procedures (Annex II No. 1 paragraphs 1 and 4 GefStoffV, old version; translated). And that prohibition was not at the disposal of the contracting parties: what the Hazardous Substances Ordinance forbids, no landlord can approve and no tenant can validly promise.

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. That asbestos-containing adhesive residues may not be covered over at all has also been confirmed as a general principle by the Administrative Court of Arnsberg.

Fifth — The "existing covering" had long since been altered: The clause expressly refers to the living room and bedroom — and even there the floor was no longer in its original state. The visible covering was laminate; and in the living room, when the brick-built structure was removed (early February 2012), it turned out that underneath, the Floor-Flex plates had already been removed — exposed adhesive, broken remnants of plates (photo documentation A408–A410). The structure was already there at move-in; so this work on the asbestos floor predates the tenant’s time. The rest of the apartment told the same story: the hallway and kitchen had been tiled by earlier tenants, the plates there removed — a visible condition degewo itself had before its eyes at the inspection (December 13, 2011) and handover, just as at the inspection for the previous change of tenant on August 12, 2010. The successor-tenant agreement (a degewo form) documents the chain of takeovers: fixtures "which had also been taken over by the current tenant" (translated). Schork’s "existing covering" was itself already the result of earlier work on the asbestos floor.

Assessment: Schork's argument fails fivefold: (1) The application B1 says "GLUED," not "floating," (2) a verbal permission was granted, (3) the permission was grossly negligent in itself — the work applied for was prohibited by the Hazardous Substances Ordinance in 2012, for private households too, (4) the permission was illegal anyway due to the covering prohibition, and (5) the "existing covering" was itself already the result of earlier asbestos work — documented in degewo’s own inspection process. That Schork submits Exhibit B1 herself and its content contradicts her own argument reveals the quality of the brief.

What the files show

Section 4 of the agreement (Exhibit B2) requires the work to be carried out "without damage to concealed installations (electrical, sanitary, heating and ventilation installations)" — and stipulates in the same paragraph: "No liability of the landlord can be derived from the granting of the permission." (both translated) 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 the resulting construction debris and similar material properly, at his own cost, outside our property" (translated). So the agreement reckons with construction debris arising — and degewo handed its removal to the tenant, out of an apartment whose asbestos contamination it knew about. Where the material went interested the company only insofar as it was not allowed to remain in the building.

Condition No. 10 (Exhibit B2) governs the end of the tenancy: "On termination of the tenancy, the tenant's own fixtures are to be removed. This also applies where these are attached to the rented property." (translated) So the agreement expressly reckons with firmly attached fixtures. And it approves them itself: the list of measures in Exhibit B2, whose item 3 is the parquet clause, permits under items 1 and 2 the laying of ceramic wall and floor coverings (tiles) in the bathroom. Tiles can only be laid firmly glued — so there degewo itself approved the fixed attachment.

Assessment: A renovation permit for a known asbestos apartment is the real question, not its clauses. But since the other side makes precisely these clauses its central line of attack, a closer look is worthwhile: the agreement contradicts itself. Measure 3 speaks of "laying on existing covering," Condition 7 reckons with construction debris arising, Condition 4 warns of pipes but conceals asbestos — and excludes the landlord’s liability. And even full compliance would not have led to safety: item 1 of the renovation application 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 under Section 7. The supposed protection ended at the bathroom door.

What the files show

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.

What the files show

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.

What the files show

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.

What the files show

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.

What the files show

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 decades 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.

What the files show

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.

What the files show

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.

What the files show

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 (as reproduced in the court file — the full text is not available to this project).

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.

Besides Exhibit B3 there is a further piece of evidence: the expert commissioned by degewo itself confirmed, when sampling the apartment, that asbestos had been installed uniformly throughout the building — not selectively in individual apartments. Since the tightened LAGetSi removal directive (July 2012), degewo has systematically tested for asbestos at every change of tenant (confirmed by parliamentary record Drs. 18/21 259). A company that samples every apartment after a tenant moves out cannot claim to have had no "specific knowledge" of the contamination. → Fact check: claim 13 (German)

degewo expressly denies any duty to inspect. In its letter to the Berlin tenants’ association Mieterschutzbund of December 5, 2018, it states: "There is no duty on the landlord to examine the apartment, without any notification of corresponding defects and without cause, as to whether firmly bound asbestos fibres have been released through damage." (translated) What is remarkable is not the legal position but the contradiction with degewo’s own practice: since July 2012 it has sampled at every change of tenant — without cause, systematically, without any tenant having to report anything. So it does examine. Just not for the tenant living in the apartment, but for the one who is about to move in.

Source — Letter from degewo’s legal department to Mieterschutzbund Berlin e.V., December 5, 2018 (German, redacted); LAGetSi removal directive of July 11, 2012; parliamentary record Drs. 18/21 259

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. degewo’s own expert confirms building-wide contamination. Its sampling practice proves systematic knowledge. And by degewo's own documentation, the information reached the tenants one year after the asbestos exposure. For Schork’s argument, moreover, the question of knowledge is a trap with no exit. A clause protects against asbestos only if its author knows about the asbestos. If degewo had no specific knowledge, then Section 3 protected at most the screed — and is then useless as exoneration in a dispute about health. If it did have the knowledge, then it should have refused the application and stated the reason, instead of enclosing a form clause. The defence needs both at once: a clause with a protective purpose and a company without knowledge.

What the files show

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 proceedings — and so his legal recourse effectively remains closed. On the other side: a state-owned enterprise that finances a law firm known for high-profile mandates (EKSK) from public funds. Legal aid exists to balance exactly this asymmetry. Here it failed.