Renovation costs at the end of the lease
November 7, 2009 | 50,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Mr. Lawyer,
I entered into a lease agreement for commercial premises (160 sqm office space) starting on December 1, 1990, which I have now terminated with proper notice by the end of October 2009.
The question arises whether I am required to:
1) repaint the rooms, including filling in drill holes from fixtures (shelves, etc.), possibly even repapering as the walls have textured wallpaper.
2) have the door frames repainted. (They are coated steel frames without damage; the door leaves are made of wood and are not subject to discussion)
3) have a "fine cleaning" of the floor carried out. It is a plastic covering that we had cleaned (machine) by a cleaning company when we moved out. Most rooms also had carpet during the lease period, so the original flooring was not used.
The issue is addressed in two places in the (pre-printed) lease agreement:
§9 (2) of the lease agreement states: "The tenant is obliged to carry out cosmetic repairs every 5 years, calculated from the start of the lease, in a professional manner. If the lease ends before this period and the tenant has not carried out the cosmetic repairs in the last year before the end, he bears a percentage of the renovation costs. This is determined based on the ratio of the period since the last cosmetic repairs were carried out during the lease term to the full renovation cycle and is based on the cost estimate of a painting company selected by the landlord."
§12 (Termination of the lease) states: "The rented premises must be cleaned and returned with all keys at the end of the lease term. §9 (2) remains unaffected."
I would also like to mention that sporadically and as required during the lease term, individual rooms, corridors, and toilets were painted, without adhering to the time frame required in the contract.
Please briefly describe the applicable legal situation for the present case.
Best regards,
Walter Ziegler
Dear inquirer,
Thank you for your inquiry!
I would like to address your questions in consideration of the situation you have described.
Before I proceed with the specific examination, I would like to briefly introduce the concept of cosmetic repairs:
According to common opinion, the term "cosmetic repairs," in reference to the definition applicable only to price-restricted housing in § 28 Abs. 4 Satz 4 II. BV, which is identical to § 7 Abs. 2 Mustermietvertrag 1976 of the Federal Ministry of Justice, includes wallpapering, painting or whitewashing walls and ceilings, painting floors and radiators including heating pipes, interior doors, as well as windows and exterior doors from the inside. It mainly involves the painterly removal of typical decorative defects resulting from the inevitable wear and tear of the premises due to the tenant's contractual use.
The performance of these "maintenance works" is primarily the responsibility of the landlord according to the legal framework, but as often happens in practice, it can also be delegated to the tenant.
This is the case in your situation.
Such a clause stating that the tenant is responsible for cosmetic repairs or the corresponding costs is generally permissible according to established case law (see judgment of the Federal Court of Justice, case no. VIII ZR 339/03).
However, the following must be noted:
If such a clause is included in the lease agreement, only damages that affect re-renting and are attributable to the tenant must be rectified. There is generally no obligation for comprehensive renovation or cosmetic repairs without reference to the actual condition, even if the lease agreement stipulates it.
With this in mind, I would like to address § 9 No. 2. In my opinion, this is an ineffective and therefore impermissible deadlines plan, as it specifies years for cosmetic repairs and does not depend on the condition of the rental property.
For instance, the clause states: "The tenant is obligated to carry out cosmetic repairs every 5 years, calculated from the start of the lease agreement."
This is a rigid deadlines plan, leading to the ineffectiveness of the cosmetic repair clause according to prevailing case law of the Federal Court of Justice, and therefore, you are not required to perform cosmetic repairs.
The same applies to the provision stating that cosmetic repairs are to be shared proportionally in case of moving out before 5 years.
This proportional rule is considered impermissible according to current Federal Court of Justice case law, as it does not consider the condition/necessity but rigid timelines. Additionally, it bases the decision on a cost estimate from a painting specialist, which is also impermissible (see above, keyword "amateur DIY level"), see Federal Court of Justice ruling dated 18.10.2006, case no. VIII ZR 52/06.
Furthermore, I want to highlight that even in the event that you need to renovate something, which I believe is not the case, you can do it yourself and should not be pressured to hire a professional company.
The Federal Court of Justice has confirmed that only a renovation work carried out independently at a "medium amateur DIY level" is required.
Therefore, the provision in your lease agreement stating that cosmetic repairs must be carried out "professionally" should not be understood as requiring the hiring of a professional company. You are allowed to do it yourself at a medium amateur DIY level (see, for example, Federal Court of Justice VIII ZR 308/02, VIII ZR 316/06).
The regulation regarding cleaning, however, is unobjectionable. In this regard, the handover of a swept-clean apartment is required.
Finally, I would like to point out the following:
The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive assessment of the situation.
Adding or omitting relevant information can lead to a completely different legal assessment.
I hope that my explanations have been helpful to you. Feel free to contact me through the follow-up option on this portal or via my email address.
I wish you a pleasant Saturday evening and a wonderful weekend!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
