Cosmetic repair

from Wikipedia, the free encyclopedia

Beauty Repair is an expression in German rental law for certain, purely decorative works at a rented apartment or a rented business space to be made to improve the appearance of the room and for the elimination of superficial damage. It is not actually a repair . In litigation it is often questionable whether this work is necessary and, if so, who has to do it: the tenant or the landlord.

In July 2020, the Federal Court of Justice announced an unexpected decision on the subject of cosmetic repairs; it is not yet taken into account in the following.

Concept of cosmetic repairs

According to German law, there is a legal definition of cosmetic repairs in rental apartments above publicly subsidized living space in the II. BV (“Second Calculation Ordinance”). According to the general opinion, this provision is also used in the case of privately financed living space for the interpretation of the term “cosmetic repairs”.

Section 28  (4) sentence 3 II. BV defines cosmetic repairs as follows:

"Cosmetic repairs only include wallpapering, painting or liming the walls and ceilings, painting the floors and radiators including heating pipes, the interior doors and the windows and exterior doors from the inside."

This also covers preparatory work, such as removing dowels and closing the holes that are created as a preparatory work for painting the wallpaper. Even just removing the wallpaper is a cosmetic repair.

There are also country-specific regulations for company apartments.

Sanding the parquet is not a cosmetic repair. Sealing parquet floors or painting the exterior of doors and windows are also not covered by the cosmetic repairs clause. This work is part of the maintenance work that the landlord has to carry out.

Obligation to carry out (statutory regulation)

According to legal regulations, it is the landlord's duty to carry out cosmetic repairs. The cosmetic repairs serve to maintain the rental property. Therefore, they are covered by the legal obligation of the landlord to maintain the rented space in accordance with the contract in accordance with Section 535 Paragraph 1 Sentence 2 and Section 538 BGB .

Obligation to carry out (contractual agreement)

The above-mentioned obligation to carry out cosmetic repairs is, however, a mandatory right and can be transferred to the tenant by contract. This is standard practice, so that the Federal Court this now even for a business custom holds, without departing from the requirement of a separate agreement.

Roughly this means: The landlord is only obliged to carry out the cosmetic repairs if there is no relevant regulation in the rental agreement, i.e. if cosmetic repairs are not mentioned, or if the contractual agreement is ineffective . In principle, however, this obligation can only be partially (effectively) transferred to the tenant.

Disputes over cosmetic repairs are common. This is mainly due to the fact that the rental contracts contain a large number of different and sometimes difficult to understand clauses on this. In principle, however, the contractual agreement can take the form of an agreement created for the individual case ( individual agreement ) or general terms and conditions (GTC) (usually in the form of pre-formulated clause contracts).

In particular, agreement in an individual agreement

The regulation of cosmetic repairs outside of general terms and conditions in the legal sense is rarely the subject of legal disputes.

If the tenant undertakes, for example, to carry out the final renovation at a later date , this regulation can be effective according to the case law of the Federal Court of Justice (BGH), provided this is done in the context of an "individual agreement ".

In particular, agreement in general terms and conditions

Most of the rental agreements are designed as form rental agreements and are therefore general terms and conditions in the legal sense (i.e. in the sense of §§ 306 ff. BGB).

A part of jurisprudence generally considers the form-based shifting of cosmetic repairs to the tenant to be ineffective from the outset, because this deviates from the essential basic ideas of the (above) legal regulation § 307 Paragraph 2 No. 1 BGB. Passing on would therefore only be possible through an individual contractual agreement. However, this view is not shared in particular by case law.

Most rental agreements on form contain regulations about the renovation of the rooms in the various phases of the lease, typically

  • when moving into the apartment,
  • during the term of the lease
  • and when moving out.

By no means all of the clauses used are effective. For example, the tenant is not obliged to have renovation work carried out by a painting company. He can also do it himself, but has to do the work in a professional manner, that is, in the way that a painter would technically do. A relevant obligation in a form contract would be ineffective.

"Rigid schedule"

In the recent period were primarily agreements in the dispute, after which the tenants on the basis of a certain term plan is to carry out renovations. Such specifications are not entirely impermissible. However, jurisprudence increasingly denies the application of so-called rigid deadline plans in general terms and conditions because they unreasonably disadvantage the tenant compared to the landlord within the meaning of Section 307 (1) BGB. The disadvantage can in particular result from the fact that a renovation has to be carried out after a certain period of time without any ifs and buts, regardless of the actual condition of the rooms, i.e. their necessity.

However, the disadvantage can also result from the fact that a deadline plan is combined with other clauses in which, for example, a renovation is additionally required when moving out, regardless of how long ago the ongoing renovation was due according to the plan or whether it would be necessary at all (so-called Summation effect , also when individual and form clauses coincide; but also violation of the transparency requirement in terms and conditions if the regulation is contradicting or if it is so extensive and confused that the average tenant can no longer recognize when he should renovate at all) . The BGH rejects the so-called validity - preserving reduction of such a renovation clause in constant case law and clauses in general terms and conditions are to be interpreted objectively.

A rigid time schedule always contains words such as later than ... at least ... within ... the usual deadlines ... . The clause according to which the tenant must renovate "if necessary ..., but at least in the following time sequence: for kitchens, bathrooms and toilets: 2 years, for all other rooms: 5 years" is ineffective .

However, caution should be exercised in determining whether there is a “rigid” plan. For example, the clause , according to which cosmetic repairs "are usually due ... after three (five ...) years at the latest ..." was judged differently by the case law. In the opinion of the Düsseldorf Higher Regional Court , it represented a rigid provision that was inappropriately disadvantageous for the tenant and made the clause ineffective. The court ruled the entire agreement was ineffective. The landlord had to do the renovation. The same clause has meanwhile been judged differently by the eighth civil senate of the Federal Court of Justice . The court took the position that the average reasonable tenant is able to recognize that a renovation can only be carried out if the normal degree of wear and tear is exceeded. The obligation only occurs “as a rule” after a certain period of time has elapsed, at least not. The different interpretation of the provision by two different courts did not lead to the application of the ambiguity regulation in § 305c (2) BGB.

An agreement is also effective that rigidly obliges the tenant to renovate after the expiry of fixed deadlines, but contains the restriction that the landlord must extend the renovation deadlines if the condition of the apartment justifies this.

Rules that work with “about” or “usually” are usually valid. However, some of the literature now advises landlords against the use of such formulations at all, because the case law on the effectiveness of rigid deadlines is difficult to foresee.

"Compensation clauses"

So-called compensation clauses or cost quota clauses were often combined with time limits. These are provisions in which it is stipulated that the tenant must reimburse the landlord for the pro rata costs for the time in which he has used the apartment when moving out before the next scheduled renovation is due. The tenant is therefore not obliged to renovate, but to pay a proportion of the renovation costs. These should result from a cost estimate. The compensation clause only applies if the renovation is not due, for example because the apartment is only slightly worn when moving out.

Since the BGH judgment of March 18, 2015 (VIII ZR 242/13), such compensation clauses have been fundamentally ineffective. You can also reclaim the landlord for payments that have already been made within a 6-month period. Clauses for unrenovated apartments that were renovated by the tenant when moving in and which contain additional renovation clauses are also ineffective.

"Color choice clauses"

The Federal Court of Justice ruled on June 18, 2008 that so-called color choice clauses are fundamentally inadmissible in residential rental agreements based on forms. If the tenant chooses an unusual color scheme during the renovation, he is free to do so for the duration of the tenancy. The BGH decided differently in a case that determined the end of the rental period: “Painted wooden parts are to be returned in the color specified at the start of the contract; Wooden parts painted in color can also be returned painted in white or light shades. “This form-based agreement does not lead to an unreasonable disadvantage for the tenant because his right of use is not affected during the rental period; the clause only applies when the rental property is returned and thus at a time when the tenant is no longer interested in the condition of the apartment.

"Wallpaper clause"

According to the BGH judgment of April 5, 2006, pre-formulated clauses are ineffective if they oblige the tenant to remove all wallpaper that he has installed or taken over from the previous tenant when he moves out.

Craftsman clause "to have carried out"

Does the cosmetic repairs clause read: “The tenant is obliged to carry out cosmetic repairs, such as B. to have the lime, painting or wallpapering of the walls and ceilings, the painting and treatment of the floors, windows and doors carried out in the apartment ... ”, it is ineffective. Due to its wording (“to be carried out”), this clause on cosmetic repairs can in any case also be understood to mean that the tenant must have the work carried out by a skilled craftsman, excluding the possibility of doing it himself. However, the tenant must not be deprived of the opportunity to carry out cosmetic repairs on his own.

Procedural matters

If the usual renovation deadlines have expired (3 years for the kitchen, bathroom, 5 years for living rooms, bedrooms and hallways, 7 years for ancillary rooms), there is a presumption that the living spaces are in need of renovation. Then the tenant has to prove that the apartment is actually not in need of renovation. If the landlord requests the renovation before the deadline has expired, the landlord is obliged to provide evidence of the need for renovation.

Special features of commercial or commercial space rental

Even when renting business premises , the landlord is obliged to renovate according to the law, Section 535 (1) sentence 2 BGB. The starting point for the examination of renovation clauses based on forms is therefore the same as for renting a home. According to § 307 Paragraph 2 No. 1 BGB, clauses in general terms and conditions are also ineffective in the commercial space rent if they deviate from the basic idea of ​​the legal regulation (here: § 535 Paragraph 1 Sentence 2 BGB). For this reason, the Federal Court of Justice has ruled that a set of clauses in the general terms and conditions that oblige the tenant to renovate during the tenancy and also upon termination is ineffective. A rigid schedule is also not permitted in the commercial space rental.

Legal consequences of ineffective renovation clauses

If the renovation clause is ineffective, the contract falls back on the legal regulation according to § 535 BGB.

Reimbursement of expenses for the tenant

If the tenant carries out cosmetic repairs despite the ineffectiveness of the renovation clause, he can be entitled to a claim for reimbursement of expenses against the landlord. However, this claim expires in accordance with Section 548 (2) BGB within six months of the end of the lease.

Rent increases due to ineffective cosmetic repair clause?

It was unclear (and disputed in the literature) whether the landlord can increase the rent if the renovation clause is ineffective. According to the wording of an earlier ruling by the Federal Court of Justice, the undertaking of cosmetic repairs is compensated for by the fact that the parties agree on a lower rent. If the renovation clause is ineffective, the reason for the lower rent would not apply. For this reason, some of the teaching held an increase in rent to be lawful, but then only within the framework of a formal rent increase request according to § 558 BGB.

In the judgment of July 9, 2008, however , the Federal Court of Justice refused that a rent increase could be based solely on the elimination of an ineffective cosmetic repair clause. The appropriateness of a rent increase in the case of non-price-linked living space can only be measured against the local comparative rent .

Web links

literature

Individual evidence

  1. ↑ Federal Court of Justice on claims of the tenant of an unrenovated apartment for cosmetic repairs to be carried out by the landlord (judgments of July 8, 2020 - VIII ZR 163/18 and VIII ZR 270/18)
  2. ↑ https://www.sueddeutsche.de/wirtschaft/miete-schoenheitsreparaturen-kosten- Judgment- 1.4963024 (comment)
  3. ↑ a b BGH, judgment of January 13, 2009, Az. VIII ZR 48/09. January 13, 2010, accessed on September 11, 2010 (WuM 2010, 85 = ZMR 2010, 432 = NZM 2010, 157 = NJW 2010, 674).
  4. ↑ Lawyer Juan-Ramón Munuera: Five questions about cosmetic repairs - 1. What are cosmetic repairs? (PDF) Accessed August 31, 2018 .
  5. ↑ For example in the Free State of Bavaria, the cosmetic repairs announcement of June 18, 2014 ( FMBl No. 9/2014 p. 142 of August 8, 2014)
  6. ↑ BGH WuM 2004, 529; critical of this: Lützenkirchen, The development of tenancy law in the higher court case law of 2004, WuM 2005, 89, 105; Note from Emmerich JuS 2006, 933, 933.
  7. ^ Federal Court of Justice, VIII. Civil Senate: Judgment of January 14, 2009, file number: VIII ZR 71/08. (PDF; 90 kB) In: 1 (guiding principle) ,. Federal Court of Justice, accessed on June 25, 2009 ( § 139 , § 306 , § 307 Paragraph 1 Clause 1 BGB): "Meet rigid and therefore ineffective form clauses to carry out the ongoing cosmetic repairs and the final renovation by the tenant with a later when moving in individually agreed assumption of the final renovation obligation by the tenant, the individual agreement is neither subject to the content control according to § 307 paragraph 1 sentence 1 BGB nor is it covered by the ineffectiveness of the form clause according to § 139 BGB (continuation of the Senate judgment of April 5, 2006 - VIII ZR 163 / 05, NJW 2006, 2116). "
  8. ^ Press office of the Federal Court of Justice: Effectiveness of a subsequent agreement on the final renovation of the rented apartment. In: Press office announcement No. 7/2009. Federal Court of Justice, January 14, 2009, accessed on June 25, 2009 (press release): "A renovation obligation follows from the final renovation agreement in No. 6 of the apartment handover protocol, provided that it is an individual agreement, as assumed by the appeals court. [...] The appellate court will now have to clarify whether - as claimed by the defendant - the apartment handover protocol and the final renovation agreement contained therein are a form intended by the plaintiff for multiple use, which is subject to the content control according to § 307 BGB as general terms and conditions. "
  9. ↑ Federal Court of Justice, VIII. Civil Senate: Judgment of January 14, 2009, file number: VIII ZR 71/08, Paragraphs 12 and 15. (PDF; 90 kB) Federal Court of Justice, p. 7 , accessed on June 25, 2009 : “[Paragraph 12 ] a) In the starting point, the appellate court correctly assumed that such an agreement, which it regards as an individual agreement, is not subject to the content control according to § 307 BGB and is also not dependent on clause 1 in such a way that the ineffectiveness of this clause inevitably affects the final renovation agreement of the handover protocol through. In any case, as the subject of an isolated individual agreement, there are no radical legal objections to the validity of such an agreement, even if the final renovation obligation is supposed to intervene regardless of the current state of preservation of the apartment (Senate judgment of April 5, 2006 - VIII ZR 163/05, NJW 2006, 2116, No. 17, 20). […] [Paragraph 15] The matter is not ready for a final decision because the appellate court - consequently from its legal point of view - has not yet dealt with the defendant's assertion that the record of the handover of the apartment is a record form that the plaintiff has submitted Kind of general terms and conditions. "
  10. ↑ Emmerich JuS 2006, 933, 935.
  11. ↑ BGH: Judgment - VIII ZR 361/03. June 23, 2004, accessed on September 11, 2010 (WuM 2004, 463 = ZMR 2004, 736 = NZM 2004, 653 = NJW 2004, 2586).
  12. ↑ BGH: press office statement No. 141/2006. October 18, 2006, accessed on September 11, 2010 (ineffectiveness of settlement clauses with “rigid” deadlines).
  13. ↑ Dusseldorf Wum 2004 603rd
  14. ↑ WuM 2005, 716; critical to this Lützenkirchen, the development of tenancy law in the higher court case law of 2005, WuM 2006, 63, 68f.
  15. ↑ BGH: Judgment - VIII ZR 48/04. February 16, 2005, accessed on September 11, 2010 (WuM 2005, 241 = ZMR 2005, 768 = NZM 2005, 299).
  16. ↑ Ganther DWW 2006, 182, 186.
  17. ↑ VIII ZR 185/14 (PDF) FEDERAL COURT OF JUSTICE. March 18, 2015. Retrieved October 26, 2019.
  18. ↑ BGH: Judgment - VIII ZR 224/07. June 18, 2008, accessed on September 11, 2010 (WuM 2008, 472 = NZM 2008, 605 = NJW 2008, 2499).
  19. ↑ BGH: Judgment - VIII ZR 283/07. October 22, 2008, accessed on September 11, 2010 (WuM 2008, 722 = NZM 2008, 926 = NJW 2009, 62).
  20. ↑ BGH: Judgment - VIII ZR 152/05. April 5, 2006, accessed on September 11, 2010 (WuM 2006, 308 = NZM 2006, 621 = NJW 2006, 2115).
  21. ↑ BGH: Judgment - VIII ZR 294/09. June 9, 2010, accessed on September 11, 2010 (WuM 2010, 476 = MDR 2010, 916).
  22. ↑ BGH: Judgment - XII ZR 308/02. April 6, 2005, accessed on September 11, 2010 (WuM 2005, 1677 = ZMR 2005, 527 = NZM 2005, 504 = NJW 2005, 2006).
  23. ↑ BGH: Judgment - XII ZR 84/06. October 8, 2008, accessed on September 11, 2010 (NZM 2008, 890 = ZMR 2009, 110 = NJW 2008, 3772).
  24. ^ LG Karlsruhe, judgment - 9 S 479/05, April 28, 2006, NJW 2006, 1983 = NZM 2006, 508.
  25. ↑ LG Berlin from June 21, 2010 - 67 S 191/19.
  26. ↑ BGHZ 92, 363 / 367f.
  27. ^ Arnold Lehmann-Richter: Rent amount and cosmetic repairs. (PDF) (No longer available online.) April 1, 2006, formerly in the original ; accessed on September 11, 2010 (lecture given at the Tenancy Court Conference 2006).  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Dead Link / www.mietgerichtstag.de  
  28. ↑ Federal Court of Justice, judgment of July 9, 2008, Az .: VIII ZR 181/07 (PDF; 94 kB), guiding principle and paragraph 10ff .; summarized in: Federal Court of Justice, press release No. 131/2008 .