Obligation to repair

Maintenance obligation refers to the legal or contractual obligation to bring a property or parts thereof into proper, functional condition and to maintain it in that condition. Depending on the form of ownership and use, this obligation applies to landlords, condominium associations, or property owners and is enshrined in the German Civil Code (BGB), the German Condominium Act (WEG), and public building regulations. Anyone who fails to fulfill this obligation risks rent reductions, claims for damages, or official orders.

Legal Basis for the Duty to Maintain

The most important legal provisions are:

• § 535 BGB (Tenancy): The landlord is obligated to maintain the rented property in a condition suitable for its contractual use throughout the entire lease term. Damage occurring through no fault of the tenant must be repaired by the landlord at their own expense.
• § 14, § 19 WEG (Condominium Act): The condominium owners’ association (WEG) is obligated to properly manage and maintain the common property. Each owner is personally responsible for their own unit.
• Public Building Law: Municipalities may, in cases of conditions that violate building codes or pose a traffic hazard, issue an administrative order requiring repairs (regulatory order), if necessary by carrying out the work themselves at the owner’s expense.

Consequences of Breaching the Repair Obligation

If the obligated party fails to fulfill their repair obligation, several consequences may arise:

• Rent reduction: Tenants may reduce the rent appropriately as soon as a defect impairs the apartment’s utility value (Section 536 of the German Civil Code). The amount depends on the extent of the impairment; courts have awarded reduction rates ranging from 5% to 100%.
• Damages: In the event of a culpable delay in repairs, the landlord may be held liable for resulting damages (e.g., water damage, health hazards caused by mold).
• Do-it-yourself repairs and reimbursement of expenses: If the landlord refuses to carry out repairs despite being given a deadline, the tenant may remedy the defect themselves and demand reimbursement of the costs (Section 536a BGB).
• Official orders: If public safety is at risk (e.g., a building structure in danger of collapsing), the building authority may order immediate repairs or closure.

Distinction: Obligation to Repair vs. Cosmetic Repairs

Cosmetic repairs (wallpapering, painting ceilings, walls, radiators, doors, and windows) are not repairs in the technical sense, but rather measures for the ongoing maintenance of the property’s appearance. The transfer of these obligations to the tenant through standard clauses in the lease agreement has been a focal point of rental law case law for decades. The Federal Court of Justice (BGH) has declared numerous rigid time-limit provisions to be invalid; the landlord’s obligation to repair remains unaffected by this.

A common misconception: Many landlords believe that an effective cosmetic repairs clause also allows them to transfer the obligation to repair to the tenant. This is not the case-cosmetic repairs concern only the visual condition, not the technical functionality of the rental property.

Obligation to Maintain Under Public Building Law

Public building law also recognizes an obligation to maintain. Building owners are obligated to keep their buildings in a condition that complies with building regulations. The building inspection authorities of cities and counties may intervene via administrative action in the event of violations-such as a building structure at risk of collapse, an unsecured roof, or parts posing a traffic hazard.

In extreme cases, a prohibition on use (closure of the building) or even an order to demolish may be issued if the cost of repairs is disproportionately high. The costs of a substitute performance (a measure initiated by the authorities) may be billed to the owner. In Nuremberg, the City Planning Office or the Building Regulations Office is the competent authority.

Practical Procedure for Defects

The typical procedure when a repair obligation under a lease is breached: The tenant reports the defect in writing (email is sufficient). The landlord has a reasonable period of time to remedy the defect-typically 2-4 weeks for normal damage, and within hours to days in cases of acute danger (heating failure in winter, water damage). If the landlord does not respond, the tenant may proceed with the repairs themselves after a grace period has expired without result and claim reimbursement of the costs. Alternatively, they may reduce the rent or demand compensation for damages.

Landlords are therefore advised to implement a structured defect management system: acknowledge receipt of every defect report, set a written deadline for repair, document the measures taken, and retain all contractor invoices.

Practical Tip for Property Owners in Nuremberg and Franconia

In older buildings in Nuremberg-such as in the Südstadt, Gostenhof, or the Wilhelminian-style neighborhoods of Erlangen-mold, leaky roofs, and outdated electrical systems are common repair issues. We recommend that landlords always confirm defect reports from tenants in writing, set a reasonable deadline for repairs, and document the measures taken. This usually helps prevent rent reductions and claims for damages.

For condominiums, owners should carefully retain the minutes of the homeowners’ association (WEG) resolutions regarding repair measures, as these are relevant for buyers and notaries in the event of a sale. We advise our clients on effective defect management and recommend consulting a specialist attorney for tenancy law at an early stage in legally unclear situations.

Frequently Asked Questions

As a landlord, do I have to respond immediately when a tenant reports a defect?

Yes, you should respond immediately-at the very least, confirm in writing that the report has been received and specify a concrete date for rectification. In cases of danger to life and limb (e.g., gas leak, ceiling collapse), immediate action without delay is required. For normal defects, a reasonable timeframe applies, which can range from a few days to several weeks depending on the severity of the defect.

Who bears the costs of repairs for a condominium property?

Costs for the repair of common property (roof, facade, stairwell, heating system) are allocated to all owners via the annual statement based on their co-ownership shares (MEA). Each owner is personally responsible for damage to their individual unit, unless the cause lies in the common property.

Can the obligation to repair be transferred to the tenant in the lease agreement?

Only within very narrow limits. Minor repairs up to approximately 100-150 euros per individual case can be effectively transferred to the tenant if the total annual cost is limited to about 6-8% of the annual net rent. The landlord cannot pass on major repairs to the tenant via a standard form contract; such clauses are invalid according to Federal Court of Justice (BGH) case law.

What does the obligation to maintain mean for historic buildings?

For historic buildings, in addition to the general obligation to maintain, requirements under historic preservation law also apply: measures must be coordinated with the local historic preservation authority, and the use of original materials or alternatives approved for historic preservation is often mandatory. In return, listed properties offer increased tax depreciation options (Sections 7i, 7h of the German Income Tax Act (EStG)), which can significantly offset repair costs.

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