Cosmetic repairs: who has to paint when you move out?

What counts as a cosmetic repair?

Cosmetic repairs (Schönheitsreparaturen) are the decorative works that remove normal wear from a flat: wallpapering, painting walls and ceilings, painting floors, radiators and heating pipes, interior doors, and windows and exterior doors from the inside. The list comes from § 28 Abs. 4 II. Berechnungsverordnung, and German courts apply it to residential leases. Repairing a broken tap or a cracked tile is not a cosmetic repair. Filling drill holes before you paint is, because it is a necessary preparation.

Which law decides who paints?

§ 535 Abs. 1 Satz 2 BGB obliges the landlord to keep the flat in the agreed condition for the whole tenancy. § 538 BGB adds that you are not liable for wear caused by normal use. So the starting point is clear: the landlord paints. The duty moves to you only through a clause in the lease. Almost every lease is a standard form, so the clause must pass the fairness test of § 307 BGB. If it disadvantages you unreasonably, it is void and the landlord keeps the whole duty (§ 306 Abs. 2 BGB). A court does not trim an unfair clause down to a fair one; it drops it.

When is a cosmetic repairs clause invalid?

The Bundesgerichtshof has struck down the most common wordings. Your clause is invalid if it has one of these features:

• The flat was handed over unrenovated or only partly renovated and you received no adequate compensation for it, such as a rent-free period (BGH, 18 March 2015, VIII ZR 185/14). Visible wear from the previous tenant at move-in is enough.
• Rigid deadlines: you must paint every three, five or seven years whether or not the rooms need it (BGH, 23 June 2004, VIII ZR 361/03). Softer wording such as "in general" or "usually" can be valid.
• Quota clause: if you leave before the next deadline, you pay a percentage of a painter's estimate (BGH, 18 March 2015, VIII ZR 242/13).
• Colour rules during the tenancy: you may only use white or specified colours while you live there (BGH, 18 June 2008, VIII ZR 224/07).
• Professional-only clause: the work must be done by a tradesperson (BGH, 9 June 2010, VIII ZR 294/09). You may paint yourself, as long as the result is workmanlike.
• Final renovation regardless of condition: you must renovate at move-out even if you painted last month.

One invalid feature is enough. The whole clause then falls away, including the parts that would have been fine on their own.

What are the key numbers and deadlines?

• Six months: the landlord's claims for damage or missed renovation become time-barred six months after he gets the keys back (§ 548 Abs. 1 BGB). A demand letter alone does not stop the clock; a court claim does, and so do negotiations between you (§ 203 BGB).
• Six months, the other way: if you painted or paid because of an invalid clause, you can claim the money back (§ 812 BGB; BGH, 27 May 2009, VIII ZR 302/07). This claim also lapses six months after the tenancy ends (§ 548 Abs. 2 BGB).
• Three, five, seven years: the old guideline intervals for kitchens and bathrooms, living rooms and bedrooms, and other rooms. They are a rough guide only; the condition of the room decides.
• Half: if your clause is invalid, the flat was unrenovated at move-in and it now looks badly worn, you can ask the landlord to renovate during the tenancy, but you usually have to pay half of the cost (BGH, 8 July 2020, VIII ZR 163/18).
• Three months' net rent: the deposit cap (§ 551 Abs. 1 BGB). The landlord may keep part of it only for claims that actually exist.

What do I do when I move out?

1. Read the clause. It sits under "Schönheitsreparaturen", "Renovierung" or "Instandhaltung" in your lease. Find the move-in protocol and photos: was the flat freshly renovated when you got the keys?
2. Compare the wording with the list above. Note which feature makes it invalid.
3. Write to the landlord before the handover. Say that you will not carry out cosmetic repairs because the clause is invalid, name the reason and the BGH judgment, and keep a copy.
4. Hand over the flat with a written protocol and dated photos of every room. Both of you sign. This protocol is your evidence if he later claims damage.
5. If he keeps the deposit for painting, demand the amount in writing and set a deadline of two weeks. If he does not pay, a Mieterverein or a Fachanwalt für Mietrecht takes it from there.
6. If you already renovated or paid, send a written claim for the costs now. The six months of § 548 Abs. 2 BGB run from the end of the tenancy.

If the clause is valid and the rooms do need it, you still only owe what the condition requires. You may paint yourself, in a neutral colour, with normal care. You do not owe a professional job and you do not owe a renovation of rooms that are still fine.

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