Many tenants and landlords are firmly convinced that tenants must also renovate their old rented property when they move out. For most people, painting the walls and closing holes in the wall plaster is an automatic part of moving out. However, according to the law, carrying out so-called cosmetic repairs is one of the landlord's obligations and not, as many people assume, one of the tenant's obligations. However, the landlord can oblige the tenant to carry out the corresponding cosmetic repairs with the appropriate clauses in a tenancy agreement. And this is also the normal case in the vast majority of tenancy agreements. Points of reference for such a transfer of the obligation to the tenant are, for example, the actual condition of the rental property, the duration of the tenancy or the scope of the work to be carried out. If the clauses are effective, the tenant must carry out all work due at the latest when moving out. However, in recent years, the Federal Court of Justice has passed numerous tenant-friendly judgements, declaring many clauses in the tenancy agreement relating to cosmetic repairs to be invalid, meaning that many tenants did not have to renovate their old flat. The only question is what is ultimately meant by cosmetic repairs and when a clause is inadmissible under tenancy law.
What are cosmetic repairs?
Cosmetic repairs are understood to be superficial, painterly renovation work that can be used to remove normal signs of use and wear and tear that inevitably occur over the years when living in a property. This includes painting, wallpapering or varnishing walls, ceilings, floors, doors and windows in the interior of the rented property as well as radiators and heating pipes. On the other hand, it also includes the filling of drill holes or minor cracks and damage in plaster, masonry or wood. The scope is roughly based on the definition in § 28 Paragraph 4 Sentence 3 II. Calculation Ordinance (II. BV). This means that not many materials are required, as in most cases you can get by with paint, wallpaper and a little filler. Extensive renovation work outside the rented property is no longer counted as cosmetic repairs. This means that repairing cellar rooms, painting windows and doors outside, sanding wooden floors or parquet, replacing carpets, replacing door locks or repairs to electrics and wiring are no longer covered. This is indisputably part of the landlord's responsibilities and not those of the tenant.
However, the above-mentioned cosmetic repairs must be carried out professionally and to an average quality. So if you have a good knack for craftsmanship, you can carry out the cosmetic repairs yourself and save a lot of money. This means you can confidently do without hiring specialists. If the repair work is unprofessional or even faulty, the landlord does not have to accept the condition. For example, if there are creases and bubbles under the wallpaper or walls that have not been painted opaquely, you as the tenant can demand compensation or that the work be redone.
In most cases, the repair of damage does not fall under cosmetic repairs. If the damage has to be repaired, the repair costs are borne by the person who caused the defect. If the tenant has caused damage, they must also pay for the removal of such damage. In individual cases, however, a lawyer should check whether the tenant will ultimately have to pay for this.
When are cosmetic repairs due?
In most cases, cosmetic repairs only become an issue between the tenants when they move out - unfortunately, it is often a contentious issue. According to the Federal Court of Justice, cosmetic repairs are due and must be carried out if the living space has become worn and unsightly. In order to provide a rough guide, the Federal Court of Justice has set different general deadlines for different rooms, after the expiry of which cosmetic repairs are required in principle:
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- Bathroom, shower, kitchen: 3 years
- Living rooms, bedrooms, toilet, hallway, corridor: 5 years
- Remaining ancillary rooms: 7 years
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If rental agreements were concluded after 2008, other deadlines apply. These are generally extended to 5 years, 8 years and 10 years. Nevertheless, these deadlines may be invalid in individual cases if the clause on cosmetic repairs in the tenancy agreement is inadmissible and therefore invalid. At this point, it is advisable to consult a lawyer who will review your tenancy agreement professionally.
Agreements in the rental contract
Cosmetic repair clauses are included in the tenancy agreement. However, case law places high demands on these clauses. Such clauses should not relieve the landlord and consequently not place undue responsibility on the tenant. Under no circumstances may the tenant be restricted in his decorating tastes for the duration of his tenancy. The tenant is free to decorate the rented property in any style and colour he wishes. If the tenancy agreement contains clauses that restrict the tenant in this respect, for example by stipulating the "whiteness" of the walls and ceilings, these are generally invalid. However, when the tenant moves out and thus when the rented property is returned, the wall colour must be in a condition suitable for re-letting and must therefore be kept in neutral tones that correspond to the generally accepted colour taste.
Quota clauses and generally inadmissible cosmetic repair clauses
If the deadlines for carrying out cosmetic repairs have not yet expired at the end of the tenancy, the landlord may, according to current supreme court rulings of the Federal Court of Justice, reach an agreement with the tenant on the proportional bearing of the costs for any cosmetic repairs. This is known as a quota or compensation clause. However, these have only been effectively agreed if
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- the basic obligation to undertake cosmetic repairs is generally effective,
- financial compensation is owed solely for the rental period,
- the quotas are transparent, comprehensible for an ordinary citizen and not unreasonable,
- a cost estimate is not declared binding by the landlord,
- an indication is given that the tenant has the option of relieving himself financially by carrying out the cosmetic repairs himself,
- no 1001TP3 settlement quota was set.
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In rental practice, the consequences of such a quota compensation clause are more than controversial. An effective quota clause ultimately leads in the majority of cases to an obligation to carry out cosmetic repairs, despite the fact that there is no need to renovate the rented property. It is also advisable to consult a lawyer at this point, as case law in this area is constantly evolving.
If a tenancy agreement contains ineffective cosmetic repair clauses, the regulations laid down by law come into force instead. According to the law, the landlord alone is obliged to carry out the renovation work after a tenant moves out of the rented property. If the tenant has carried out the cosmetic repairs or commissioned a specialist company even though the clause in the tenancy agreement was invalid, the tenant can reclaim the expenses incurred from the landlord. These claims for repayment expire six months after the return of the rented property. Some of the most frequent and therefore most important decisions of the Federal Court of Justice in recent years are presented below. These decisions mean that the tenant does not have to carry out decorative repairs, even though there was an agreement in the tenancy agreement.
- Unrenovated flat
If a tenant takes over a rented property in a non-renovated condition and does not receive appropriate compensation for the expenses incurred, he/she does not normally have to carry out any cosmetic repairs in the rented property when moving out. If a dispute arises in such cases, the tenant must be able to prove that the rented property was actually not renovated when they moved in. Tenants should be careful in such situations, as these are often bait-and-switch offers that ultimately end up costing the tenant more.
- Specifications too strict
As a rule, cosmetic repair clauses that impose strict requirements on the tenant when carrying out the work are invalid. The landlord may not specify in the tenancy agreement which colour tones or types of colour are to be used by the tenant for the renovation. Similarly, the landlord may not specify any particular wallpaper patterns. This applies in particular to the cosmetic repairs that must be carried out during the rental period, as the design of the rented property must be left to the tenant.
- Renovation by specialists
If a tenant undertakes to carry out cosmetic repairs, the landlord must allow them to carry them out professionally themselves to an average standard. Clauses that stipulate that the tenant only has to commission a specialist company to carry out the cosmetic repairs are generally not permitted.
- Deadlines too short
Cosmetic repairs are generally due every 3 years, 5 years or 7 years, depending on the room. In the case of newer tenancy agreements, every 5 years, 8 years or 10 years. If the landlord stipulates in the tenancy agreement that the tenant must carry out repairs disproportionately frequently, these shorter renovation periods are generally not permitted and are invalid.
- Rigid deadlines
The correctly set deadlines mentioned above may also be inadmissible under certain circumstances if the tenancy agreement obliges the tenant to always carry out renovations after the corresponding period of time has expired and without taking into account the actual condition of the rooms. These are rigid clauses, which stand out due to additions such as "at the latest" or "at least".
- Quota clause
There are also the aforementioned quota or compensation clauses. With the help of these, landlords want to avoid having to bear the full costs of cosmetic repairs. In such cases, the tenant moves out before the generally stipulated renovation deadlines (see above) have expired. The quota clauses oblige the tenant to pay a pro rata share of the future cosmetic repairs. For example, if it is assumed in an individual case that the repairs to the living space will amount to EUR 500 after a rental period of 5 years, a tenant must make a pro rata payment of EUR 300 under the quota clause if they move out after just 3 years. In 2015, however, the Federal Court of Justice declared the so-called compensation clauses invalid, as they often unreasonably disadvantage the tenant (BGH, judgements of 18 March 2015, VIII ZR 185/14; VIII ZR 242/13; VIII ZR 21/13).
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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Lawyers in Cologne provide advice and representation in tenancy law.