Right to enter of the landlord*lady

The right to enter of the landlord*lady / Zutrittsrecht Vermieter:in

June 12, 2023

Tenants and landlords/landladys often argue about whether the landlord/landlady has the right to inspect or enter "his/her" flat. On the landlord's/landlady's side, there is of course an interest in getting an exact picture of the condition of the flat. However, many tenants see it as a serious encroachment on their personal rights if the landlord/landlady "invades" "their" flat and their most personal space.

When does the landlord/landlady have a right of access?

In principle, the following applies: The landlord/landlady has no right of inspection without cause. The tenant exercises domiciliary rights - these also apply to the landlord/landlady, so that the tenant can generally deny the landlord/landlady access. Unless otherwise stated in the tenancy agreement, the landlord/landlady only has the right of inspection for special reasons. A form-based access clause in the tenancy agreement may be invalid if it unreasonably disadvantages the tenant. This is the case if the landlord/landlady is granted a general right "to inspect the condition of the flat" (BGH judgement of 4.6.2014 - VIII ZR 289/13). A special reason exists if the landlord/landlady can present factual reasons which make an inspection necessary.

Mere routine inspections of the flat to determine the general condition do not constitute an objective reason. When an inspection is necessary depends on the circumstances of the individual case. The justification to determine possible deficiencies is also not sufficient. This is due to the fact that the tenant is obliged to report defects according to section 536c of the German Civil Code (BGB) and thus also to determine them.

The desire to show the flat to potential tenants after termination of the tenancy agreement before handing over the rented property entitles the landlord/landlady to inspect it. However, it must be sufficiently certain that the tenancy will end. This is not the case if the tenant has objected to a notice of termination by the landlord/landlady or if a dispute about eviction rights is pending.

A right of inspection also exists in the event of the imminent sale of the flat. The landlord/landlady may first request access in order to get an idea of the flat to be sold in order to prepare the sale. The landlord/landlady also has the right to enter the flat with prospective buyers or estate agents.

The meter reading also constitutes an objective reason. The landlord/landlady can either read the meter himself or have it read by an agent.

Controversial is, whether the landlord/landlady has the right to inspect the flat to check whether the tenant has complied with the contractually agreed deadlines for carrying out cosmetic repairs. The question of when such a cosmetic repair clause is effective will not be dealt with here. If the tenant is obliged to carry out cosmetic repairs, the landlord/landlady can, according to the opinion represented here, also check during the existence of the tenancy whether these have been carried out by the tenant in accordance with the agreement. If the landlord/landlady is obliged to carry out cosmetic repairs himself/herself, it is argued that he/she must then also be entitled to enter the flat in order to fulfil his/her obligations. The argumentation of the Bonn Local Court cannot be followed if it believes that the landlord/landlady can also fulfil his/her obligation without inspecting the apartment, since he/she can send craftsmen (see AG Bonn, judgement of 25 May 2005 - ref. no. 5 C 275/04). The local court in Bonn fails to recognise that the landlord/landlady is not obliged to have the work carried out by third parties or to ascertain the amount of work required before commissioning the work.

The landlord's/landlady's right to inspect planned repair, modernisation or refurbishment work is already regularly provided for in sections 555a, 555d BGB. Only in this way can the landlord/landlady determine the type and scope of the construction work.

Furthermore, the landlord/landlady may demand an inspection of the flat if there are concrete indications of imminent damage. This suspicion may arise, for example, due to the smell of mould in the neighbouring flat. The landlord/landlady may therefore investigate the cause of the damage.

The suspicion that the tenant is using the rented property in breach of the contract, e.g. in the case of unauthorised subletting or unauthorised animal keeping, also entitles the landlord to inspect the flat. However, such suspicion must itself be justified in order to constitute a reason for the inspection.

Procedure if a right of access exists

The landlord/landlady must notify the tenant of his/her wish to inspect the flat. The right of inspection only exists if the visit is notified in writing at least three days in advance. A shorter period only applies in emergencies, such as urgent repairs - then a period of 24 hours is considered sufficient. However, if the visit is to take place during the working hours of a working tenant, a longer notice period is required (usually one to two weeks before the scheduled visit date). The landlord/landlady must also make use of his/her right to inspect the property in a way that is as gentle as possible, i.e. he/she must take into account the interests of the tenant. If third parties (e.g. estate agents or prospective buyers) are to view the flat instead of the landlord/ landlady, the tenant may refuse the viewing if no proof is provided that the third party has been commissioned by the landlord/ landlady to view the flat - this is usually done by means of an original power of attorney issued by the landlord/landlady.