Cosmetic repairs - What rights do tenants have when moving out?

The legislator has defined in § 28 para. 4 II. BV which works are to be considered "cosmetic repairs". These include:

• Wallpapering
• Painting or whitewashing of walls and ceilings
• Painting the floors
• Painting the radiators including heating pipes
• Painting the interior doors
• Painting the exterior doors and windows from the inside

In addition, only necessary preparatory activities for the aforementioned work are considered to be cosmetic repairs. If, for example, you have to paint a wall, the filling of existing drill holes is also included. Only then is the activity considered proper, even if the filling of boreholes is not explicitly stated in the law. Other maintenance work, such as painting the outside of windows, sanding down parquet floors or laying tiles, is not considered to be cosmetic repairs. The repair of door locks, light switches or installation lines are not considered to be cosmetic repairs, nor is the removal of wear and tear through no fault of our own. Such repair work shall be carried out by the Lessor. Damage that occurs during the rental period may constitute a rental defect that can lead to a reduction in rent.

According to § 535 para. 1 and § 538 BGB it is determined that in principle the landlord is responsible for the implementation of cosmetic repairs. However, it can also be stipulated in the rental agreement that the tenant must carry out repairs to remove signs of wear and tear. These obligations are usually laid down under the clause "cosmetic repairs". Invalid agreements are often found here. This is particularly interesting for tenants: If one of these agreements is illegal, no cosmetic repairs are required upon moving out. Have your cosmetic repairs clause in the lease checked and save valuable time and money.

Settlement rate
Compensation quotas, also known as compensation clauses, oblige a tenant to pay pro rata renovation costs for the past year. Such clauses are invalid. In contrast to most other invalid clauses, only the compensation clause is invalid. If cosmetic repairs are necessary, tenants may still have to carry them out.

Fixed deadlines for renovations
If the rental agreement specifies exact deadlines for carrying out renovation work during the rental period, these deadlines are invalid. Examples are "proper and professional renovations in:

• kitchens, bathrooms and showers after 2 years of rental,
• Living rooms, corridors and hallways after 5 years of rental,
• bedrooms and adjoining rooms after 10 years of rent."

If the time schedule contains generalisations such as "as a rule" or "normally", it takes on a directive character and is therefore valid.

Colour selection clauses
If the rental agreement contains specifications regarding the choice of colour, for example of the wallpaper, this is illegal. The same applies to clauses where the cosmetic repairs must be carried out in "neutral" or "light" colours.

Wallpaper removal
The landlord may not demand in the rental agreement that the tenant must remove all wallpaper after moving out.

Craftsman clause
If the rental agreement states that the cosmetic repairs are to be carried out by a specialist craftsman or company, this is an invalid clause.

Scope of the work
Which work must be carried out is specified in § 28 Para. 4 II. BV (see "Which work is considered to be cosmetic repairs?"). All other work specified in the rental agreement, such as sanding down the parquet floor or painting the windows from the outside, is invalid.

Obligation for an initial renovation
The tenant cannot be obliged to renovate the apartment before moving in.

Obligation for final renovation (return clause)
The Lessee cannot be obliged to hand over the rented property in a renovated condition at the end of the rental period, regardless of when the last cosmetic repair was carried out. It can be agreed that the rented property must be handed over "in a condition ready for occupancy", but this does not imply a complete obligation to renovate the property.

If the apartment is handed over in an unrenovated state or in a state in need of renovation, the costs for cosmetic repairs may not be passed on to the tenant. The compensation must be based on the condition of the apartment and the necessary renovation work. The reason for the new jurisdiction is that the tenant may not be obliged to return the rented property in a possibly improved condition. However, it is not possible to make a general statement as to whether a dwelling is in need of renovation or not. This depends on the overall impression of the rooms. In case of doubt, a decision must be made on the basis of the specific individual case.

Anyone who hands over his apartment to a subsequent tenant and agrees with the latter in consultation about passing on wall paint or larger fixtures must clarify this with the landlord beforehand. As a matter of principle, previous and subsequent tenants cannot make any valid agreements until the landlord has agreed to this. If all three parties agree to the assumption of the cosmetic repairs or the final renovation by the next tenant, the renovation work can be passed on to the next tenant. This saves the previous tenant unnecessary cosmetic repairs and the next tenant can design the apartment according to his or her own ideas.

The cosmetic repairs can be carried out by the tenant himself, but also by a professional craftsman. The decision on this lies with the tenant. The only important thing is that the apartment is handed over in the condition stipulated in the contract. A prerequisite for this is that the tenant is obliged to carry out the cosmetic repairs and that there are no invalid renovation clauses in the rental agreement.

If the tenant is effectively obliged by the rental agreement to carry out the cosmetic repairs, he/she must bear the costs of the renovation work. If the cosmetic repairs clause is invalid, the tenant does not have to carry out renovation work. Many tenants still carry out these works in order to avoid disputes with the landlord or to keep the deposit (For now only in german). If the tenant has already carried out the renovation despite the ineffective cosmetic repair clause, the money can be reclaimed up to 6 months after moving out (German).

If the Landlord plans major modernisation or conversion measures after the Tenant has moved out, he may also demand compensation from the Tenant instead of carrying out the cosmetic repairs. In this case, cosmetic repairs would not make sense, as the planned construction work would destroy the renovation work. The landlord has to inform the tenant in time about the compensation payments and can only do so if the tenant has not already started with the cosmetic repairs.

Whether the tenant must carry out the cosmetic repairs after a short rental period depends on the condition of the rented property. As a rule, however, repairs of minor traces of use, such as the closing of boreholes, are sufficient. If there are larger damages, however, the tenant must remove them. A short rental period is a rental period of up to 2 years.

The tenant is only obliged to carry out cosmetic repairs during the rental period if the cosmetic repair clauses in the rental agreement are valid and there is a need for renovation, for example because the substance of the apartment is threatened.