duty to preserve

Duty of Maintenance - The duty of maintenance refers to the legal or contractual obligation to keep a property in proper, usable condition. Under tenancy law, this duty primarily applies to the landlord (Section 535 of the German Civil Code [BGB]), who must provide the tenant with the apartment in a condition suitable for its contractual use and maintain it in that condition. In property law, the duty of maintenance arises from public building regulations, the Condominium Act (WEG), and community obligations. A breach of the duty of maintenance has significant legal and economic consequences.

Landlord’s Duty of Maintenance in Tenancy Law

The duty of maintenance under tenancy law is enshrined in § 535 BGB:

What the landlord is obligated to provide:

• Handing over the rental property in a condition consistent with the contract at the start of the lease
• Maintaining this condition throughout the entire lease term
• Removing defects that impair the property’s suitability for use as specified in the contract

What the maintenance obligation entails:

• Maintenance (routine upkeep: heating, plumbing, electrical)
• Repairs (fixing existing damage: leaky roof, broken heating system)
• Modernization is not considered part of the maintenance obligation-it is voluntary and may lead to the landlord’s right to increase rent

Consequences of breaching the maintenance obligation:

• Tenant’s right to a rent reduction (Section 536 BGB)
• Tenant’s claims for damages (Section 536a BGB)
• Right of self-help: After the deadline has expired, the tenant may repair the property themselves and demand reimbursement of costs
• In extreme cases: Tenant’s right to terminate the lease for cause

Maintenance Obligations in a Condominium Association (Condominium Owners’ Association)

In condominium law, a distinction is made between the maintenance of common property and that of individual units:

Common property (duty of the WEG):

• Roof, facade, stairwell, elevator, outdoor facilities
• The HOA is obligated to ensure proper maintenance (Section 19(2) WEG)
• Financing via the maintenance reserve fund

Individual property (owner’s obligation):

• Interior walls, floor coverings, plumbing and heating systems within the owner’s unit
• The owner bears the maintenance costs themselves

Overview of Maintenance Obligations - Legal Basis and Consequences

Area	Obligated Party	Legal Basis	Consequences of Breach
Tenancy Law - Maintenance/Repairs	Landlord	§ 535 BGB	Rent reduction (§ 536), Damages (§ 536a BGB)
Tenancy Law - Minor Repairs	Tenant (if applicable, via clause)	Clause in the lease agreement	No obligation without a valid clause
WEG - Common Property	WEG Community	§ 19(2) WEG	Action to enforce a resolution by owners
WEG - Individual Ownership	Individual owner	Community Rules	Damages for harm to neighbors
Building Regulations	Property owner	Art. 14 BayBO	Building regulation order, penalty payment
Historic Preservation Law	Owner of Historic Building	Art. 4 BayDSchG	Administrative Offense Proceedings, Renovation Obligation

Maintenance Obligation and Building Regulations

In addition to private-law tenancy and WEG law, the maintenance obligation also arises from public building regulations. In Bavaria, Art. 14 BayBO requires owners to maintain their buildings in a proper, structurally sound, and safe condition. If an owner violates this obligation, the building authority may order measures under building regulations-ranging from safety measures to, in extreme cases, the demolition of a dilapidated building.

For listed buildings, a specific maintenance obligation under historic preservation law (Art. 4 BayDSchG) also applies: Owners of historic buildings are obligated to maintain the monument in a usable condition, to the extent that this is economically reasonable. Tax depreciation (§ 7i EStG) and subsidies are available to help fulfill this obligation.

Practical Tip for Owners in Nuremberg and Franconia

In Nuremberg and the metropolitan region, we serve many landlords with existing properties dating from the 1960s to the 1980s. We recommend proactively addressing the maintenance obligation: Regular maintenance contracts for heating, elevators, and electrical systems prevent costly emergency repairs and protect against rent reductions.

In condominium associations (WEGs), a well-funded maintenance reserve is crucial-the 2020 WEG Reform Act has strengthened the transparency and enforceability of maintenance measures. The owners’ meeting can pass resolutions on maintenance measures by a simple majority. The Nuremberg Local Court has jurisdiction over WEG disputes; the Tenants’ Association and Haus & Grund Nuremberg advise landlords and tenants. We recommend that owners conduct regular property inspections to identify damage early and continuously fulfill their maintenance obligations.

Frequently Asked Questions

Who is responsible for paying for minor repairs in a rental apartment?

Generally, the landlord, as part of their maintenance obligation. However, through a valid minor repairs clause in the lease agreement, it can be agreed that the tenant will cover repairs up to a certain amount (maximum approx. 100-150 euros per individual repair, annual total limit approx. 6-8% of the annual rent). If such a clause is missing, the landlord bears all costs.

Can the landlord transfer the maintenance obligation to the tenant?

Partially: Cosmetic repairs (painting, wallpapering) can be imposed on the tenant through a valid contractual clause. However, the Federal Court of Justice (BGH) has declared many common clauses invalid (e.g., fixed deadlines). The core maintenance obligation (roof, heating, plumbing) cannot be transferred to the tenant.

What is a maintenance reserve in a condominium association (WEG)?

The maintenance reserve (formerly: repair reserve) is a mandatory reserve account of the WEG into which all owners contribute proportionally. It serves to finance major maintenance and renovation measures on the common property. A well-funded reserve (rule of thumb: 1% of the building’s value per year) protects against unexpected special assessments.

What happens if a landlord consistently refuses to make repairs?

If the landlord fails to address the issue within a set deadline, the tenant may commission the repairs themselves and demand reimbursement from the landlord (§ 536a BGB). Additionally, the tenant is entitled to a rent reduction and, in the case of serious defects, the right to terminate the lease for cause. We recommend that both landlords and tenants seek legal advice early on in the event of a dispute.

Back to the Real Estate Glossary.