Cosmetic repairs when moving out

Landlords often assume that tenants have to carry out cosmetic repairs when moving out. However, this is only the case if these tasks have been assigned in the rental agreement - and with an effective clause. We show you which clauses are valid and which are invalid.

Table of contents Table of contents cosmetic repairs when moving out: clauses and deadlines at a glance

• Who is responsible for cosmetic repairs?
• Invalid cosmetic repair clauses
• Only paint as needed
• What are cosmetic repairs?
• When does the tenant need to renovate?
• Small repairs in the apartment

Table of contents Table of contents cosmetic repairs when moving out: clauses and deadlines at a glance

• Who is responsible for cosmetic repairs?
• Invalid cosmetic repair clauses
• Only paint as needed
• What are cosmetic repairs?
• When does the tenant need to renovate?
• Small repairs in the apartment

Often, tenants do not have to make cosmetic repairs when moving out - even though it is in black and white in the contract. "Contrary to popular belief, the landlord is legally obliged to carry out cosmetic repairs in the rental rooms, " says Rainer Schmitt, a lawyer with the Bayerne.V homeowners association. Pursuant to Section 535 of the Civil Code, the landlord is obliged to keep the rental property in a condition suitable for the contractual use during the rental period.

Who is responsible for cosmetic repairs?

Renovate in the end? In principle, landlords can transfer the obligation of cosmetic repairs to the tenant - with a corresponding clause in the rental agreement. However, the legislator sets strict conditions for this. The law regulates what is meant by cosmetic repairs - namely only painting. The tenant only needs to complete these tasks when moving out if the landlord has given him a renovated apartment to move in with. In addition, the tenant must have lived in the apartment for a longer period of time, so that a painterly revision is actually necessary.

It is basically the job of the landlord to maintain the rental apartment.

Photo: iStock / hanohiki

Invalid cosmetic repair clauses

The Federal Court of Justice has declared many contractual clauses on cosmetic repairs invalid in recent years. If all other conditions are met, it depends on the correct wording whether the tenant has to paint colored walls when moving out or not.

Three sources of error From his consulting practice, lawyer Rainer Schmitt knows: "In more than half of the existing rental contracts, the clause on cosmetic repairs should be ineffective." This is especially true for contracts that are ten years or older. The judges recently declared three types of contractual agreements to be void:

1. The final renovation clause: "The tenant has to return the apartment freshly renovated or whitewashed."

2. A rigid schedule: "After X years, rooms A and B must be whitewashed or deleted."

3. The quota clause: "After X years you have to cheat. If the tenant moves out beforehand, he has to bear the costs for the renovation proportionately."

Only paint as needed

Legally, these and similar clauses fail because when the contract is signed it is not yet clear how worn-out the rental property will be at the end of the contract. How do you recognize a valid clause? "It obliges the tenant to only carry out the cosmetic repairs that are actually necessary, depending on the degree of individual wear, " explains the lawyer of the home association. He advises landlords to only use current contract forms that also take into account recent case law. Associations and consumer centers are suitable sources of supply. If you download the first best rental agreement from the Internet, you run the risk of being left with the painter's costs in the end.

Less and less often, tenants have to resort to brushes and paint pots when they give up their old tenancy. The courts have recently annulled clauses such as "The tenant has renovated the apartment or returned it whitewashed".

Photo: fotolia / Robert Kneschke

What are cosmetic repairs?

According to the law (Second Calculation Ordinance, § 28), cosmetic repairs are basically only to be understood as the painting-related revision of the rental property:

• Wallpapering, painting or liming the walls and ceilings
• Painting wooden floors, cleaning carpets
• Painting of radiators including the heating pipes
• Painting the inside doors as well as the windows and the outside door from the inside
• In order to properly paint walls, it is often necessary to close drill holes

When does the tenant need to renovate?

These five conditions must be met for the tenant to make cosmetic repairs:

1. The rental agreement stipulates that the tenant takes care of cosmetic repairs.
2. The contractual clause on cosmetic repairs is effective.
3. The tenant lived in the apartment for a longer period (usually 5 years) with regular wear and tear.
4. Cosmetic repairs are actually necessary.
5. The landlord gave the tenant the apartment renovated.

If all five points are correct, the tenant must professionally carry out the cosmetic repairs, or have them carried out, at his own expense. A clause, which however prescribes the renovation by a specialist company selected by the landlord, is absolutely ineffective.

Small repairs in the apartment

The tap is dripping, the flush button is stuck: Who pays for repairs in the apartment?

It is the landlord's responsibility to maintain the rental apartment. He must repair the dripping tap or the broken toilet flush or commission a craftsman to do it. If it has been contractually determined with a so-called minor repair clause, the tenant can reclaim the costs for the measure. However, this is only possible up to the agreed maximum - the landlord must take over more expensive repairs.

What are typical minor repairs?

The characteristic of minor repairs is that the defect occurs on objects with which the tenant regularly comes into direct contact. These include fittings, door and window handles, light switches, flush buttons, but not electricity and water pipes or the inside of the cistern. Repairing damage caused by the tenant or one of his guests is not a minor repair. This can be broken window panes, drill holes or cracks in tiles, for example. The lessee is generally responsible for this damage.

How can the costs be contractually transferred to the tenant?

Small repair clauses in rental contracts must clearly state what amounts the tenant has to pay - for the individual repair and as a maximum amount per year. Courts accept amounts of up to around EUR 100 for a measure. The maximum amount per year may be around six percent of the annual rent. If the claim is too high or if the tenant is even obliged to carry out the repair himself, the whole clause becomes ineffective. As a result, the landlord has to pay all the costs for small repairs out of his own pocket.