gardening, tree felling
December 1, 2009 | 55,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Good day!
This concerns my father's rented apartment, who had to move to a nursing home. I am currently clearing out the household and would like advice regarding the final renovation and the reasonable work in the garden.
1) When my parents moved into the new building 20 years ago, the garden was not yet landscaped, which they did at their own expense. Since my mother passed away 12 years ago, my father has let it become quite overgrown and the landlord then billed my father once a year for lawn mowing and pruning of the bushes. In the meantime, a fir tree was removed from the front garden without informing my father, and I am not aware of whether the costs were passed on to him at that time. Now the landlord wants a 20-year-old fir tree with roots at the rear terrace to be dug up at my father's expense.
Question 1: What is the general rule regarding shrubs and trees planted by the tenant, and does the age play a role? Is this demand lawful?
2) Moisture has seeped into the apartment through the masonry on the weather-protected side of the house in recent years, leading to mold formation. However, my father did not allow the landlord to repair the damage. The weather side was clad with slate and shows no damage.
Question 2: The copy of the standard lease agreement sets relatively tight deadlines (2 years for the bathroom, 3 years for the rest) for cosmetic repairs and also an obligation for a complete renovation upon move-out, due to the new construction at the time of renting. Since my mother's passing, my father has not had anything done in the apartment, so a renovation is definitely necessary. What I would like to know is to what extent we need to cover the costs, as the mentioned damages to the building seem to be the landlord's responsibility.
Thank you for your prompt response!
Dear client,
Thank you for your inquiry!
I would like to address your questions based on the information provided by you as follows:
Regarding question 1) What generally happens with shrubs and trees planted by the tenant, and does the age play a role? Is this demand legal?
This depends on what was agreed upon in the rental contract. Generally, the maintenance, including trimming shrubs and hedges, is the landlord's responsibility. However, this duty is often shifted to the tenant in the rental contract. This can be done by requiring the tenant to take care of the maintenance themselves or by having the landlord hire a company and pass on the costs in the utilities (this is a very common practice).
Please review the relevant rental contract for more information.
When it comes to trees, it is different. There are municipal tree protection regulations that prohibit cutting down trees above a certain height or age. These regulations vary from municipality to municipality, so please inquire with your local government for more information.
Typically, a tree around 20 years old is already well-established and cannot be removed without official permission. If this is the case, neither your father nor you as his legal successor are obligated or authorized to remove the tree. Removing a tree in violation of such tree protection regulations could lead to legal consequences, including fines or penalties.
Regarding question 2) Moisture has penetrated the wall on the weather-protected side of the house in recent years, leading to mold in the apartment. However, my father did not allow the landlord to fix the damage. The weather side has been clad with slate and shows no damage.
Initially, the landlord was responsible for compensating your father for the mold issue.
However, since your father did not allow the landlord to fix the mold issue, your father bears significant responsibility, leading to a significant reduction in claims.
The landlord could have pursued legal action against your father to address the mold issue. It is peculiar that the landlord did not take further action to address the mold issue, especially considering it concerns his property. The reasons for the landlord's inaction are not clear in this case.
Regarding question 3: The copy of the standard lease agreement sets fairly tight deadlines (2 years for the bathroom, 3 years for the rest) for cosmetic repairs and also obliges a complete renovation upon moving out due to new construction upon moving in. Since my mother's passing, my father hasn't done anything in the apartment, so renovation is definitely necessary. I would like to know to what extent we must cover the costs, as the damages to the building are presumably the landlord's responsibility.
Generally, the landlord is responsible for cosmetic repairs. However, under certain conditions, it is possible to shift some of the responsibility for cosmetic repairs to the tenant. Many cases have shown that such shifts are unlawful or the corresponding clauses are ineffective.
Fixed deadline clauses for cosmetic repairs are considered invalid. If the lease agreement states that the tenant must carry out cosmetic repairs at specific intervals without regard to the actual condition of the leased property, such a clause is invalid, and the general rule that the landlord is responsible for cosmetic repairs applies.
Without seeing the lease agreement, it is not possible to definitively determine whether this is the case for you. If you wish, you can send me the lease agreement and for a small fee, I can provide a definitive assessment on this matter.
Now, a brief mention of the renovation clause. If, as in this case, the final renovation is included in the lease agreement in addition to a schedule of deadlines, the courts deem this combination of obligations (ongoing and final renovation) as unreasonably burdensome to the tenant, and thus the final renovation is not required.
Separate from this is the question of damages.
If the issue is not normal wear and tear but rather damages requiring compensation, such as chipped parquet, broken tiles, burn marks, etc., the landlord may still be able to claim these costs from you as the legal successor to your father.
In this context, the statute of limitations must also be considered, which, according to §§ 195, 199 BGB, is regularly 3 years from the landlord's knowledge of the damages for such compensation claims.
Lastly, I would like to remind you that my legal advice is based solely on the information provided by you. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the circumstances.
Adding or omitting relevant information could lead to a completely different legal assessment.
I hope my explanations have been helpful. Feel free to contact me through the follow-up option on this platform or via my email address if you have any further questions.
Have a pleasant Tuesday afternoon!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
