Federal Court of Justice, 12.03.2014, Case No.: XII ZR 108/13
The landlord is generally obliged to provide the tenant with the leased property in a contractual condition and to maintain it in this condition during the lease term. Maintaining the contractual condition includes all measures necessary to allow the tenant to use the property as agreed throughout the entire rental period.
This particularly includes so-called cosmetic repairs, i.e., measures to rectify defects resulting from proper use of the property. These repairs are typically assigned to tenants in almost all standard lease agreements.
Whether this assignment is legally valid can be determined through a review of the general terms and conditions (AGB). The invalidity of a clause regarding cosmetic repairs may lead to the invalidity of other clauses. It should be noted that for leases concerning commercial spaces, special conditions apply under § 310 (1) of the German Civil Code (BGB).
If the tenant fails to carry out the agreed-upon cosmetic repairs, the landlord may be entitled to a claim for fulfillment and, if necessary, for damages.
In the above-mentioned judgment, the Federal Court of Justice (BGH) had to address the interpretation and validity of the general terms and conditions concerning cosmetic repairs within the context of a revision.
Facts: Lease of commercial premises and disputed cosmetic repairs
The plaintiff had rented commercial premises from the defendant and vacated them at the end of the lease without having performed cosmetic repairs during the rental period. The plaintiff sought reimbursement of rent paid for January 2011, as well as pre-litigation attorney’s fees, and the return of a rental security bond. The defendant counterclaimed with a damages claim for failure to carry out cosmetic repairs.
Decision of the Regional Court and Court of Appeal
The Regional Court ruled in favor of the plaintiff. However, in the appeal, the Higher Regional Court overturned this decision and dismissed the claim, as the defendant was entitled to damages for the failure to perform cosmetic repairs.
Assessment by the Federal Court of Justice (BGH)
The BGH upheld the decision of the appellate court. The plaintiff was obligated to carry out cosmetic repairs, and the contractual provision did not unfairly disadvantage the plaintiff under § 307 (1) BGB. There was no improper shift of maintenance obligations to the detriment of the plaintiff.
No obligation for final renovation without need
The BGH clarified that cosmetic repairs only need to be carried out when there is an actual need, and there is no requirement for fixed renovation intervals. Upon termination of the lease, the tenant must return the premises in a ready-to-use condition without being required to perform a comprehensive final renovation. Since the rented premises were in need of renovation upon return, the plaintiff was obligated to renovate.
Source: Federal Court of Justice
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