The BGH ruled:
The standard form contract for the transfer of responsibility for cosmetic repairs to the tenant is invalid if an unrenovated apartment was handed over to the tenant at the beginning of the tenancy without the tenant being granted appropriate compensation.
The case:
Between 2002 and 2011, the defendants rented an apartment from the plaintiffs (landlords) in Berlin. The lease was concluded on October 1, 2002. At the beginning of the lease, the tenants were waived rent for half a month. In return, the tenants were to paint three rooms that had not been renovated.
Within the lease, the tenants also agreed to carry out cosmetic repairs at their own expense during the lease.
After the end of the tenancy, the tenants did not carry out any cosmetic repairs. They considered the cosmetic repairs clause to be invalid. The landlord then claimed compensation from the tenants for the failure to carry out cosmetic repairs.
The court decision:
The district court largely agreed with the landlord and ordered the tenants to pay damages. The tenants' appeal against this was unsuccessful. The district court ruled that the tenants would not be unreasonably burdened by having to carry out both the initial and ongoing renovationsbecause according to the regulation in the lease, the tenants were not obliged vis-à-vis the landlord to carry out the painting work mentioned therein at the beginning of the lease in a certain way and within a certain period. A transfer of the obligation to carry out cosmetic repairs – here not subject to rigid deadlines – does not unreasonably disadvantage the tenant, even in the case of an initially unrenovated apartment, as long as the renovation periods only run from the beginning of the tenancy. With the revision allowed by the court of appeal, the defendants continued to pursue their request for dismissal.
The BGH dismissed the landlord's claim in its entirety, setting aside the previous decision. The BGH stated that the tenants had de facto taken over an unrenovated apartment at the start of their occupancy. The cosmetic repair clause used, when interpreted in the most customer-unfriendly way, would mean that the tenant would have to renovate the apartment prematurely or, if necessary, return it in better condition than he had received it from the landlord. This is unfair. The discount granted by the landlord at the start of the tenancy does not change this, since half a month's rent does not represent appropriate compensation in this case.
Practical tip:
The Federal Court of Justice has once again made it more difficult for the landlord to pass on cosmetic repairs to the tenant by means of a form. Such clauses are – as things stand today – only possible if the landlord hands over a completely renovated apartment to the tenant. If the landlord intends to use a cosmetic repair clause for an unrenovated apartment, he must grant a discount in the amount of the notional renovation costs.
In practice, however, it would probably be more sensible to dispense with the use of cosmetic repair clauses altogether. In return, the landlord should calculate the rent at the beginning of the tenancy in such a way that he is financially able to bear any cosmetic repairs himself.
Reference:
BGH judgment of March 18, 2015 - VIII ZR 185/14 -
preceding:
AG Tempelhof-Kreuzberg - judgment of August 9, 2013 - 22 C 57/12 LG Berlin - judgment of June 25, 2014 - 65 S 388/13
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.