Reimbursement of expenses by the tenant
Reimbursement of expenses by the tenant / Aufwendungsersatzanspruch des Mieters
May 09, 2023
Tenant's claim to reimbursement of expenses for maintenance, repair or modernisation measures - in particular for replacement accommodation
It happens again and again that the landlord/landlady wants to do work in the tenant's flat. Such work can either be carried out as maintenance or repair work, or as modernisation work. The entry of "strangers" into the flat and the work in the flat, which in most cases represents the centre of the tenant's life, is often associated with burdens for the tenant. In this case the interest of the owner of the leased property in maintaining or improving the leased property is in conflict with the interest of the tenant in using the leased property.
Reimbursement of expenses for maintenance, repair or modernisation measures
If the landlord/landlady carries out maintenance, repair or modernisation measures, the tenant must in principle tolerate the measures of the landlord/landlady. However, the tenancy law of the German Civil Code (BGB) does not render the tenant unprotected. In such cases, the tenant is entitled to reimbursement of expenses under section 555a (3) BGB. Accordingly, the landlord/landlady has to reimburse the tenant for any expenses that the tenant must incur as a result of the measures.
What is a reimbursement of expenses?
Reimbursement of expenses reimburses those who have incurred expenses, i.e. "voluntary" asset sacrifices. Expenses within the meaning of the German Civil Code (BGB) are therefore to be distinguished from damages in that they do not occur "involuntarily", but the tenant decide within themselves to incur expenses.
Maintenance and repair measures
According to section 555a BGB (German Civil Code) the tenant is obliged to tolerate repair and maintenance measures. This is because the tenancy law recognises that the landlord/landlady must have the possibility of repair and maintenance, even if such measures are not always desired by the tenant.
The obligation to tolerate shall initially require the existence of a maintenance or repair measure. Maintenance measures are such measures which are intended to prevent imminent damage to the rented property (e.g. replacement of fragile pipes), while repair measures are such measures which become necessary to remedy damage (e.g. restoration work after a water pipe has already burst). In addition, the measures must be "necessary". Necessity is given if, according to the current state of affairs, work on the leased property is indicated, whereby owners have further scope for assessment. However, the obligation to tolerate does not exist indefinitely; the measures must also be reasonable for the tenant in the specific case (this has been refused, for example, when replacing windows in winter).
Landlord’s/Landlady‘s obligation to give notice
In accordance with section 555a (2) BGB the measures must be announced to the tenant. In particular, the type and extent as well as the duration of the measures must be indicated. In individual cases, however, the notification can be omitted. If the maintenance and repair measures are not announced, contrary to section 555a (2) BGB, the tenant is not be obliged to tolerate them.
The claim for reimbursement of expenses in detail
For example, expenses in the form of storage costs may be considered if furniture or personal items of the tenant are removed from the premises at the expense of the tenant. Relocation costs incurred by temporarily leaving the flat must also be reimbursed. Under certain circumstances, the tenant may also demand reimbursement from the landlord/landlady for the costs of alternative accommodation, e.g. in a hotel or holiday flat. This is the case if the flat is no longer habitable due to maintenance or repair work. Especially in cases where the tenant have to look for alternative accommodation, the right to advance payment under section 555a (3) sentence 2 BGB becomes relevant, as alternative accommodation is likely to be associated with high costs in most cases. The tenant can demand an advance payment from the landlord/landlady in order to cover the costs of the substitute accommodation. It is important to note that the tolerance of the maintenance or repair measures can be made dependent on the payment of the advance, i.e. there is only an obligation to tolerate the maintenance or repair measures if the landlord/landlady makes an advance payment - without an advance payment, the tenant are not obliged to allow the landlord/landlady to enter the flat or to allow craftsmen commissioned by him/her to enter the flat.
Invalidity of deviating agreements
Furthermore, it should be noted that according to section 555a (4) BGB, deviating agreements, i.e. those that exclude, for example, a claim for reimbursement of expenses, cannot be effectively agreed for residential tenancies, so that a claim for reimbursement of expenses exists regardless of what is regulated in the tenancy agreement with regard to these claims.
No competition between claims for reimbursement of expenses and rent reduction
A reduction in rent is not excluded by the claim for reimbursement of expenses. The tenant may only pay the reduced rent "in addition to" the claim for reimbursement of expenses. However, the tenant must note that the rent payment cannot be reduced to "zero" due to the uninhabitability of the flat and, in addition, the costs of a replacement flat will be reimbursed. This would mean that the tenant, who usually "anyway" spends money on housing, would receive something "as a gift" from the landlord/landlady due to the maintenance or repair work. In this respect, it should be noted that if the tenant demand full reimbursement of the costs of the replacement accommodation, he/she is still obliged to pay the rent, so that he/she can only demand the amount in excess of the rent from the landlord/landlady.
In the event that the landlord/landlady does not carry out any maintenance or repair measures, but a modernisation, the provision of secrion 555a (3) BGB is applied "accordingly" in accordance with section 555d (6) BGB. It follows that the tenant is entitled to reimbursement of expenses and an advance payment, just as in the case of maintenance and repair measures.
Assertion of the claim for reimbursement of expenses
The tenant may either demand the costs incurred by the expenses directly from landlord/landlady as payment or offset the costs against the rent, legally called offsetting.