Dispute over security deposit
April 29, 2011 | 35,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Sir or Madam,
Upon taking over my rental apartment from the previous tenant, it was found that the oven and extractor hood (5 years old) were in such a dirty condition that both the new tenant and the tenant's authorized representative confirmed that cleaning was no longer possible and the stove needed to be replaced (as noted and signed in the handover protocol). I had the parts replaced and sent the former tenant the invoice for the replacement and notified him of the remaining deposit amount, which I will pay out to him after the end of the deposit account lock-up period. I have now received a letter from a lawyer stating that the stove could have been cleaned with a maximum of two hours of effort and offering a maximum refund of 100 euros. I am being asked to provide evidence that the stove was irreparable and needed to be replaced. How should I respond?
Dear Questioner,
Thank you for your inquiry. I would like to answer it as follows:
In principle, the landlord is responsible for maintaining the rented property, see § 535 BGB.
However, if the tenant fails to fulfill obligations (such as cleaning) and as a result damages the rented property, the tenant is generally liable to the landlord for damages.
It is important that the defect/damage is also documented in the handover protocol and signed by both parties. In your case, this seems to have been done without any issues.
If the landlord (which is usually the case) has not yet returned the deposit, he can make a deduction or set-off in the amount of the damage.
In principle, you are in the right based on your description.
The problem here is not the legal situation but the burden of proof.
If you assert a claim for damages (which you have done), you must also prove the requirements for that claim.
As the injured party, you have a duty to mitigate damages. This means that only necessary measures can be taken and the damage should not be artificially inflated.
If cleaning was indeed possible (you must prove that cleaning was not possible), only those costs would be reimbursable under the duty to mitigate damages.
You can insist on your claim if you can prove that cleaning was unsuccessful. Otherwise, you should at least try to renegotiate.
I hope this provides you with an initial legal orientation and wish you good luck and all the best!
I would like to point out the following:
The legal advice I have provided is based solely on the facts you have provided. My response is only a preliminary legal assessment that cannot replace a comprehensive review of the situation. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope my explanations have been helpful to you. Please feel free to contact me through the follow-up option if you have any further questions.
I wish you a pleasant Friday afternoon!
Kind regards from the North Sea coast
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Stresemannstr. 46
27570 Bremerhaven
kanzlei.newerla@web.de
Fax.0471/140244
