Cosmetic repairs (Schönheitsreparaturen)
Maintenance obligation of the landlord/landlady
In tenancy law, according to section 535 (1) sentence 2 of the German Civil Code (BGB), the landlord/landlady is obliged, among other things, to maintain the rented object in a condition suitable for use in accordance with the contract during the rental period. This is the second main obligation of the landlord/landlady under the tenancy agreement in addition to the obligation to grant use under section 535 (1) sentence 1 BGB. The legal regulation means that the landlord/landlady must repair damage caused by normal wear and tear. Maintenance and repair of the rented property including cosmetic repairs are his/her responsibility, i.e. also the renovation of the rented property.
Also in the case of price-free housing, the definition in section 28 (4) sentence 4 II. BV is decisive. According to this definition, cosmetic repairs only include "wallpapering, painting or whitewashing the walls and ceilings, painting the floors and radiators including the heating pipes, the interior doors as well as the windows and exterior doors from the inside".
Tenant's obligation to renovate?
Probably due to common practice, there is often the misconception that, contrary to the basic concept of tenancy law, the tenant is obliged to paint or renovate the flat at least when moving out. However, according to what has just been said, this has no legal basis in tenancy law.
Cosmetic repair clauses
Therefore the tenant is only obliged to carry out cosmetic repairs if such an obligation arises from the tenancy agreement itself, because the landlord/landlady can transfer this obligation to the tenant in the tenancy agreement. In the case of cosmetic repairs, in addition to the individually agreed transmission the transfer of the obligation to the tenant by the way of a standard form is generally accepted and in line with common practice. However, not every transfer of cosmetic repairs to the tenant is effective. The effectiveness of the transfer is usually determined by section 307 BGB, since the transmission is based on a standart form, according to which a clause is invalid if it unreasonably disadvantages the contractual partner of the user.
Legal effectiveness of cosmetic repair clauses
In particular, cosmetic repair clauses that impose a renovation obligation on the tenant upon moving out are invalid because they do not meet the high requirements developed by case law with regard to adequacy. Such clauses are also called "final renovation clauses". However, a clause is conceivable that establishes an ongoing renovation obligation on the part of the tenant. Due to the extensive casuistry regarding the effectiveness of cosmetic repair clauses, only a rough overview can be provided here.
The highest requirement with regard to the effectiveness of a cosmetic repair clause is the necessity of the cosmetic repair. The Federal Court of Justice (BGH) has considered the passing on of the cosmetic repairs to the tenant in the form of a standard clause to be effective if the tenant is only obliged to carry out the renovation work for his/her own contractual period and if the obligation to carry out cosmetic repairs depends on the actual condition of the rented property and thus on the degree of wear and tear and is not based on a rigid time schedule (BGH WuM 1987, 306). Thus, a clause containing a rigid time schedule, i.e. obliging the tenant to renovate the rental object by means of rigid time limits irrespective of the actual "use" of the rental object, is invalid. These clauses give the landlord/landlady a claim for performance regardless of the condition of the rented property and prevent the tenant from proving that in the given individual case there is actually no need for renovation (cf. BGH NJW 2015, 1874). According to the case law of the Federal Court of Justice, clauses with a time schedule are only effective if they do not contain a rigid time schedule, but the time limits only represent a guideline. This is usually ensured by the clause having the character of a guideline or orientation aid, which can be achieved by formulations such as "usually", "as a rule". Then the tenant retains the right to refuse the cosmetic repairs because wear and tear of the flat is not recognisable.
Furthermore, clauses obliging the tenant to carry out cosmetic repairs when taking over a flat in need of renovation or unrenovated are invalid without granting an adequate compensation at the same time (BGH NJW 2015, 1594). Such compensation may consist of a rent reduction or a renovation cost allowance. The initial condition of the rooms is not relevant if the tenant has undertaken towards the previous tenant a so-called final renovation obligation. In this case, he/she is to be treated in relation to the landlord/landlady as if he/she had taken over the flat in renovated condition, i.e. he/she must allow himself/herself to be treated in this way.
Final renovation clauses that stipulate a renovation obligation irrespective of the duration of the lease are also inadmissible, as this does not sufficiently take into account the tenant's handling of the rental object and the wear and tear of the rental object over time.
Also invalid are clauses that generally oblige the tenant to use a certain type of finish (e.g. colour scheme, use of materials). This restricts the tenant in the design of his/her personal living space without an acknowledging interest. Furthermore, the tenant must in principle have the right to carry out the cosmetic repairs himself/herself. For this reason, so-called "skilled craftsman clauses", which require the tenant to have the cosmetic repairs carried out by a skilled craftsman at his/her own expense, are also prohibited. The landlord/landlady can not tell the tenant what colour to use for the final renovation. However, even without a contractual stipulation, the tenant must choose the colour scheme of the flat in such a way that it is acceptable to the largest possible group of potential tenants and enables a quick subletting. This is ensured by the use of light-coloured and discreet paints and varnishes (cf. BGH NJW 2014, 143 marginal no. 14).
Tenant's claim for compensation in the event of invalid clauses
If the tenant has carried out cosmetic repairs and renovated the flat despite an ineffective obligation to do so, he/she can demand compensation for his/her expenses from the landlord/landlady.