The Federal Disability Equality Act (BGStG) has been in full force since 01.01.2016. The aim of this federal law is to eliminate or prevent discrimination against people with disabilities and thus ensure the equal participation of people with disabilities in society and enable them to lead a self-determined life (see Section 1 BGSt).
The BGSt comes into full force after a ten-year transitional period. The BGSt applies to legal relationships, including their initiation and establishment, as well as to the utilization or assertion of benefits outside of a legal relationship, insofar as access to and the supply of goods and services available to the public is concerned and the direct regulatory competence of the federal government is given (see Section 2 para. 2 BGStG).
This therefore applies to all offers that are aimed at the public in the sense of an undefined group of addressees. This also includes offers to rent or sell apartments or business premises as soon as these are offered publicly (Internet, print media).
What is meant by accessibility?
Buildings and other facilities, means of transport, technical commodities, information processing systems and other designed areas of life are barrier-free if they are accessible and usable for people with disabilities in the generally customary manner, without particular difficulty and in principle without outside help (see Section 6 para. 5 BGSt). This includes, for example, wheelchair ramps, large elevators, wide doors and steps. The design of accessibility depends on the different building regulations of the respective federal states, as the BGSt itself does not contain any specific lists of what is meant by barrier-free.
Accessibility does not have to be implemented if the removal of barriers would be unlawful or unreasonable due to disproportionate burdens (Section 6 (1) BGStG).
Removal would be illegal, for example, if the building is a listed building and the building regulations of the respective federal state prevent its removal.
When examining whether burdens are disproportionate, the following must be taken into account in particular:
– the costs associated with the elimination of the conditions justifying the discrimination,
– the economic capacity of the party contesting discrimination,
– subsidies from public funds for the relevant measures,
– the time elapsed between the entry into force of this Federal Act and the alleged discrimination,
– the effect of the discrimination on the general interests of the group of persons protected by this Act,
– in the case of access to housing, the need to be demonstrated by the person concerned for the use of the housing in question (cf. Section 6 (2) BStG).
It must therefore be examined on a case-by-case basis:
– Is there indirect discrimination due to a structural barrier?
– If so, is it objectively justified and proportionate?
– If not, is the removal of the barrier i) unlawful or ii) unreasonable?
Who is responsible for ensuring accessibility in rented properties?
If an entrepreneur acts as a business tenant, he is obliged to make his business barrier-free. The tenant’s obligation to provide accessibility also means that it is the tenant and not the landlord who is liable for any claims for damages.
In order to comply with this obligation, structural changes are often necessary:
– Minor changes that are easy to remove and do not affect the interests of the landlord may be carried out by the tenant without further requirements, e.g. the installation of grab rails in the sanitary area.
– Measures that go beyond this, such as moving doors or replacing sanitary facilities, require the landlord’s consent.
For property operators, this means that although they cannot be held legally liable under the BGStG when renting out business premises, they may well suffer significant economic disadvantages. A real estate agent should therefore also obtain all relevant information on accessibility and the applicable building regulations in relation to the property to be let.
Legal consequences of violating the regulations
In the event of a violation of the BGSt, the person concerned is in any case entitled to compensation for the financial loss and for the personal impairment suffered. Apart from discrimination in the execution of the law, such claims can only be asserted in ordinary courts if conciliation proceedings have been carried out beforehand. This procedure begins with the submission of the complaint and ends with the settlement or with the delivery of the confirmation that no amicable settlement could be reached. The arbitration board must also offer mediation.