Minor repairs in the rental agreement

Cosmetic repairs are usually carried out at the end of the tenancy. They cover only wallpapering, painting or whitewashing the walls and ceilings, painting the floors, radiators including heating pipes, interior doors, and the inside of windows and exterior doors. Whether the tenant is obliged to carry out a final renovation under the rental agreement depends on the validity of the cosmetic repairs clause.

However, further maintenance work may become necessary while the tenant is using the apartment. German tenancy law defines this as the repair of minor damage (also: "Bagatellschäden", i.e. trivial damage) to the fittings for electricity, water and gas, the heating and cooking facilities, window and door locks, and the locking devices of shutters. These measures are generally referred to as minor repairs ("Kleinreparaturen").

Standard-form clauses are clauses that have been pre-formulated for a large number of contracts and imposed unilaterally by the landlord – in other words, they were not negotiated and the tenant had no influence on them. This is likely to apply to most clauses in rental agreements.

A clause may be invalid if it unreasonably disadvantages the other party to the contract – that is, if the minor repairs clause in the rental agreement deviates too far from essential principles of the law. For minor repairs clauses, the statutory principle follows from § 535 Abs. 1 S. 2 BGB (German Civil Code), under which the landlord must hand over the rented property to the tenant in a condition suitable for the contractually agreed use and keep it in that condition. As a rule, this means that the landlord has to carry out repairs and bear the costs. Exceptions apply where the damage was caused by the tenant's conduct.

Clauses that require the tenant to bear part of the costs are valid under the following conditions:

1. The clause contains a limitation in scope, i.e. it relates to minor repairs only. Any cost burden on the tenant going beyond this renders the clause invalid.
   For the definition, reference can be made to § 28 Abs. 3 S. 2 II Berechnungsverordnung (Second Calculation Ordinance). Accordingly, the limitation in scope must relate to items that are subject to the tenant's direct and frequent use, since shifting the cost burden is only justifiable where the tenant has an influence on these items. These include light switches, taps, shower heads, bathtubs, toilet bowls and flushing cisterns.
   Excluded, on the other hand, are window and door seals, gas, water and electricity lines laid in walls, drain pipes and door locks.

2. In addition, the minor repairs clause must contain a twofold cap on the amount. First, it must specify the maximum amount up to which the tenant has to bear the costs of an individual repair. There is no fixed limit here. Based on a range of court rulings, the cap should lie between 75 euros and 110 euros. If the minor repairs clause does not contain a cap of this kind, it is invalid in its entirety and the landlord has to bear the costs, even if they are below the cap.
   Even if the clause contains a cap but the cap is exceeded in the specific case, the landlord bears the full cost. A contribution by the tenant up to the cap is not permitted.

3. A further requirement for a valid minor repairs clause is a cap for cases where several minor repairs occur within a certain period, usually one year. If the burden on the tenant does not exceed 8 per cent of the annual net cold rent and all other requirements are met, the clause is generally valid. If this cap is missing, or if the permissible upper limit is exceeded, the clause is invalid. Where the above conditions are met, a minor repairs clause that may impose costs on the tenant is valid.
   However, there are exceptions. The tenant does not have to bear the costs of repairing damage that already existed before the start of the tenancy, that was caused by the landlord or by third parties not attributable to the tenant's sphere, or that was caused by force majeure, e.g. a lightning strike or flooding. If a repair commissioned by the tenant is unsuccessful, it is nevertheless deemed to have been paid for by the tenant. In this case, the cost risk lies with the landlord.