Federal Court of Justice, 04.05.2011, VIII ZR 195/10
The subject of cosmetic repairs is repeatedly the subject of legal disputes that often go all the way to the Federal Court of Justice.
The landlord is generally obliged to keep the rented property in a condition ready for use or in accordance with the contract, which also includes regular renovation of the rented premises.
However, this obligation of the landlord is usually passed on to the tenant in the tenancy agreement.
In the past, a renovation clause with a rigid deadline schedule was often included, which was typically formulated as follows:
"The tenant must carry out cosmetic repairs in the kitchen, bathroom and WC every 3 years and in the other rooms every 5 years."
In its ruling of 23 June 2004 (case reference: VIII ZR 361/03), the Federal Court of Justice ruled that such a clause with a fixed schedule would oblige the tenant to renovate in good time regardless of the actual need for renovation and that the clause was therefore invalid due to the breach of good faith it contained.
The so-called "wallpaper clause", according to which the landlord is obliged to remove all wallpaper when moving out, is also invalid according to BGH case law (VIII ZR 152/05, VIII ZR 109/05):
"The tenant must remove the floor coverings and wall and ceiling wallpaper installed by him or taken over from the previous tenant and repair any damage to subfloors and wall or ceiling plaster caused by their installation or removal."
Another (much-noticed) judgement of the BGH of 28 March 2007 (Ref.: VIII ZR 199/06) dealt with the so-called execution clauses.
Accordingly, clauses contained in residential tenancy agreements that impose an obligation on the tenant to carry out cosmetic repairs in a certain way are subject to stringent requirements.
A clause that stipulates, for example, that the tenant may only deviate from the "previous method of execution" of the cosmetic repairs with the consent of the landlord is therefore invalid due to unreasonable disadvantage to the tenant.
In the above-mentioned judgement, the BGH now had to deal with the question of when a tenant's claim for reimbursement for cosmetic repairs carried out by the tenant in ignorance of the invalidity of a renovation clause becomes time-barred.
FactsThe plaintiff was a tenant of a flat of the defendant for over 6 years. Before the tenancy ended, the plaintiff had the flat professionally renovated.
It was agreed in the tenancy agreement that the plaintiff was obliged to carry out the cosmetic repairs:
"The tenant must have these cosmetic repairs carried out during the term of the contract after the following periods of time have elapsed since the start of the tenancy or since they were last carried out: Kitchen, bathroom or shower rooms, toilet every three years; all other living rooms and corridors every five years".
As the clause was ineffective due to the rigid deadlines in this respect due to unreasonable disadvantage to the plaintiff in accordance with Section 307 (1) BGB, the plaintiff demanded that the defendant reimburse the renovation costs incurred due to unjust enrichment. The defendant, on the other hand, raised the defence of the statute of limitations.
Federal Court of JusticeThe BGH followed the view of the defendant. Tenants' claims for reimbursement of expenses or for permission to remove furnishings are generally time-barred six months after the termination of the tenancy (Section 548 (2) BGB).
This limitation period of six months from the end of the tenancy also covers claims for compensation by the tenant for cosmetic repairs carried out in ignorance of the invalidity of a renovation clause.
Source: Federal Court of Justice
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