Guiding principle
The tenant is liable for damages if he returns an apartment that was decorated in a neutral color scheme when he moved in in a garish color scheme at the end of the lease that would not be accepted by many prospective tenants.
The case:
Between 2007 and 2009, two tenants rented a semi-detached house from a landlady. They had taken over the property freshly renovated in white, then painted individual walls of the rental property in bold colors (red, yellow, blue) and returned it in this condition at the end of the lease. In August 2009, the landlady had the colored walls initially treated with primer and then had all wall and ceiling surfaces painted twice with wall paint. She spent an amount of 3,648.82 euros on this.
The landlord sued for the costs of repairing the damage, offsetting part of the deposit paid by the tenants. The tenants counterclaimed for repayment of the deposit.
The verdict:
The BGH ruled in favor of the landlady and stated that tenants are obliged to pay compensation in accordance with § 241 para. 2, § 280 para. 1 BGB if they return an apartment that has been neutrally decorated with a colored coat of paint.
According to the Federal Court of Justice, the tenant breaches his duty of consideration under § 241 (2), § 242 BGB if he returns the apartment, which was taken over in a neutral decoration, in a condition that would not be accepted by many prospective tenants. The landlord's loss consists in having to remove the decoration that is unacceptable to a wide range of tenants.
When using the apartment, the landlord and tenant must take into account the interests of the other party. The tenant has the legitimate interest of decorating the apartment according to his personal taste during the rental period, while the landlord has the legitimate interest of to have the apartment returned to a state of decoration at the end of the tenancy that corresponds to the tastes of a larger group of interested parties and thus does not prevent it from being re-let quickly.
Practical tip:
The ruling presented here strengthens the interests of landlords. It is true that the landlord must accept that the tenant paints the apartment according to his personal preferences during the rental period. However, if the tenancy ends, the landlord's interest in re-letting the property as quickly as possible takes precedence. The tenant must therefore replace the bright colors he has used with neutral colors when he moves out.
In its judgment, the Federal Court of Justice ruled that the removal of bright colors does not fall under the term cosmetic repairs. Rather, the tenant is in breach of his contractual obligation if the unusual color scheme is not removed when the apartment is returned. The landlord is therefore also entitled to compensation if the cosmetic repairs were not or not effectively transferred to the tenant.
However, before claiming damages, the landlord must ensure that the tenant is given a reasonable period of time to rectify the defect. The short limitation periods of § 548 BGB must be observed. In calculating the damage, the landlord must also take into account an appropriate deduction "new for old". It is therefore strongly advisable to seek qualified advice at an early stage in the course of enforcement.
Reference:
BGH, judgment of November 6, 2013 - VIII ZR 416/12, preceding: LG Gießen, November 7, 2012 - 1 S 71/12; AG Friedberg, February 10, 2012 - 2 C 176/10
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.