Kassel Regional Court, 07.10.2010, 1 S 67/10
The topic of cosmetic repairs is repeatedly the subject of legal disputes. In principle, the landlord is obliged to keep the rented property in a condition ready for use or in accordance with the contract, which also includes the regular renovation of the rented premises. However, this obligation is usually passed on to the tenant in the tenancy agreement. In the past, a renovation clause with a fixed schedule was often included for this purpose:
"The tenant must carry out cosmetic repairs in the kitchen, bathroom and WC every 3 years and in the other rooms every 5 years."
In its judgement of 23 June 2004 (case reference: VIII ZR 361/03), the Federal Court of Justice ruled that the rigid deadline schedule would oblige the tenant to renovate in good time regardless of the actual need for renovation and that the clause was therefore invalid due to the breach of good faith it contained.
The so-called "wallpaper clause", according to which the landlord is obliged to remove all wallpaper when moving out, is also invalid according to BGH case law (VIII ZR 152/05, VIII ZR 109/05):
"The tenant must remove the floor coverings and wall and ceiling wallpaper installed by him or taken over from the previous tenant and repair any damage to subfloors and wall or ceiling plaster caused by their installation or removal."
Another (much-noticed) judgement by the Federal Court of Justice from 28 March 2007 (case reference: VIII ZR 199/06) dealt with the so-called execution clauses. According to this judgement, clauses contained in residential tenancy agreements that impose the obligation on the tenant to carry out cosmetic repairs in a certain way must meet high standards. A clause that stipulates, for example, that the tenant may only deviate from the "previous method of execution" of the decorative repairs with the landlord's consent is therefore invalid due to unreasonable disadvantage to the tenant.
The Regional Court of Kassel had to deal with such a clause in the above-mentioned decision, albeit with the difference that the tenant in this case only realised the invalidity of the clause after a longer period of time.
FactsThe defendant (landlord) had rented a flat in a block of flats to the plaintiff (tenant). The tenancy agreement contained a so-called "execution clause", according to which the tenant was only allowed to deviate from the "previous method of execution" of the cosmetic repairs with the landlord's consent. After the flat had been renovated at the plaintiff's expense and some time had passed, the plaintiff realised that the clause was invalid and brought an action before the local court for repayment of the renovation costs on the grounds of unjust enrichment. The defendant invoked the statute of limitations. The local court agreed with the defendant and dismissed the claim. The plaintiff then appealed.
Kassel Regional CourtThe Regional Court of Kassel also followed the view of the defendant. According to the case law of the Federal Court of Justice, the transfer of the obligation to renovate to the plaintiff in the form contract was invalid pursuant to Section 307 (1) BGB, which is why the defendant had acted in breach of duty and culpably by requesting the plaintiff to renovate. However, the defence of the statute of limitations applies because the provision of Section 548 (2) BGB applies to both claims in question, with the result that the plaintiff's claims for repayment are time-barred due to the short limitation period of six months. This is because Section 548 (2) BGB applies not only to claims for reimbursement of expenses under tenancy law, but also to all competing claims arising from the same facts of life, e.g. claims arising from agency without authority, tort law or unjust enrichment law.
Source: Kassel Regional Court
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