Tenant's right of self-remedy

Tenant's right of self-remedy / Das Selbstbeseitigungsrecht des Mieters bei Mängeln der Mietsache

September 21, 2023

In the event of defects in the rented property, the landlord/landlady is obliged to restore the rented property at his/her own expense in accordance with section 535 (1) of the German Civil Code (BGB). However, it happens time and again that landlords/landladies do not take action despite the existence of a defect.

The tenant's right of self-remedy allows the tenant to repair any damage to the rented property at the landlords/landladies expense if the landlord/landlady does not take action. The right of self-remedy is regulated in section 536a (2) BGB.

Prerequisites of the right of self-remedy

Self-remedy of defects in the rented property is only possible under certain conditions. It is important that the tenant is only reimbursed for the repair costs by the landlord/landlady if the conditions are met.

Defect in the rented property

First of all, there must be a defect in the rented property. This is the case if the rental object has a defect that reduces or eliminates its suitability for use in accordance with the contract, section 536 BGB. A minor reduction in suitability does not constitute a defect. A defect may also exist if the rented property lacks a warranted characteristic or if this characteristic ceases to exist at a later date, section 536 (2) BGB.

Delay of the landlord/landlady in remedying the defect

It is important to note that the right of self-remedy does not always exist, but only if the landlord/landlady is in default with the removal of the defect, section 536a (2) no. 1 BGB, or if the immediate removal of the defect is necessary to maintain or restore the condition of the rented property, section 536a (2) no. 2 BGB. The landlord/landlady is in delay if the tenant has unsuccessfully requested the landlord/landlady to remedy the defect, in the best case by setting a deadline. If the landlord/landlady does not take action, the tenant can restore the rented property himself/herself pursuant to section 536a (2) BGB and demand reimbursement of the costs of restoration from the landlord/landlady. If there is a defect but the landlord/landlady was not requested to remedy it, the tenant who has the defect remedied at his/her own expense cannot demand compensation. Therefore, in practice, a deadline for a removal must always be set.

Enforcement

The tenant may either demand reimbursement of the costs of self-remedy from the seller or set them off against the landlords/landladys claim for rent with his/her claim for reimbursement of the expenses incurred. The set-off shall have the effect that the landlords/landladies claim for payment of the rent shall lapse in the amount of the claim for reimbursement of expenses. After offsetting, the tenant shall then only owe the rent remaining after subtracting the expenses.