Cosmetic repairs

Cosmetic Repairs - Cosmetic repairs refer to the decorative maintenance of rental premises, specifically the wallpapering, painting, and whitewashing of walls and ceilings, as well as the painting of floors, radiators, interior doors, and the interior surfaces of windows and exterior doors. These are expressly not structural repairs, but rather the removal of normal signs of wear and tear.

Legal Basis and Federal Court of Justice (BGH) Case Law

In principle, the landlord is obligated under Section 535(1) sentence 2 of the German Civil Code (BGB) to maintain the rented property, which includes cosmetic repairs. In practice, however, this obligation is regularly transferred to the tenant via a clause in the lease agreement. For such a transfer to be valid, the clause must meet the strict requirements of Federal Court of Justice (BGH) case law.

The Federal Court of Justice has established standards in several landmark rulings that landlords must be aware of. Rigid deadline provisions are invalid: Clauses that oblige the tenant to perform cosmetic repairs at fixed intervals (e.g., the kitchen and bathroom every three years, living areas every five years) unreasonably disadvantage the tenant (BGH, judgment of June 23, 2004, VIII ZR 361/03). Only flexible timeframes are permissible, which are formulated as guidelines and include a reservation such as “generally” or “if necessary.”

Clauses that prescribe a specific color requirement are equally invalid. The Federal Court of Justice (BGH) has ruled that an obligation to return the apartment in “white” or “light” colors upon moving out unreasonably disadvantages the tenant because it restricts their freedom of design during the lease term (BGH, judgment of June 18, 2008, VIII ZR 224/07). Only upon returning the apartment may a contract require decoration in neutral colors.

Final renovation clauses that require renovation upon moving out regardless of the apartment’s actual condition are also invalid. The same applies to combinations of ongoing cosmetic repairs and a final renovation obligation, as these place a double burden on the tenant.

Special Case: Apartment Taken Over Unrenovated

A particularly relevant practical issue is the apartment taken over unrenovated. In 2015, the Federal Court of Justice (BGH) ruled that cosmetic repair clauses are invalid if the tenant took over the apartment in an unrenovated condition and did not receive reasonable compensation for this (BGH, judgment of March 18, 2015, VIII ZR 185/14). Otherwise, the tenant would be obligated to remove traces of the previous tenant and return the apartment in better condition than they received it.

According to BGH case law, “reasonable compensation” can take the form of the landlord contributing to the initial renovation costs (e.g., €200-500). Without this compensation, the clause is invalid. In practice, we therefore strongly recommend that landlords document the condition of the apartment at the time of handover with a detailed handover report and photos. This is the only way to prove, in the event of a dispute, whether the apartment was handed over renovated or unrenovated.

What Landlords Must Consider When Renting Out a New Tenant

When renting to a new tenant, the cosmetic repairs clause should be carefully worded. A legally sound clause includes: a flexible schedule with guidelines (not strict deadlines), no obligation to use specific colors during the lease term, no obligation to renovate at the end of the lease regardless of the condition, and a clear description of the scope of the cosmetic repairs.

We recommend that landlords have current model clauses reviewed by a specialist attorney for tenancy law-case law is constantly evolving. An invalid clause results in the renovation obligation remaining entirely with the landlord; this can entail significant costs when a long-term tenant moves out.

Practical Tip for Landlords in Nuremberg and Franconia

In the Nuremberg metropolitan area, we frequently encounter outdated lease agreements with invalid cosmetic repair clauses. Especially for existing apartments in neighborhoods such as Südstadt, St. Johannis, or Erlangen-Bruck, some landlords still use contract templates from the 1990s that no longer meet current Federal Court of Justice (BGH) requirements.

We advise landlords in the region to have existing lease agreements reviewed by a specialist attorney for tenancy law. An invalid cosmetic repair clause means that the obligation to renovate remains entirely with the landlord. For new leases, the clause should include flexible deadlines, no color requirements during the lease term, and no obligation for end-of-lease renovations. Please feel free to contact us-we can recommend experienced rental law specialists in the region.

Frequently Asked Questions

What specifically counts as cosmetic repairs?

The scope is clearly defined by case law: wallpapering, painting, or whitewashing walls and ceilings; painting floors, radiators (including heating pipes), interior doors, as well as windows and exterior doors from the inside. This does not include sanding and sealing parquet floors, painting exterior windows, replacing carpeting, or repairs to the building structure such as fixing cracks in the masonry.

Can the landlord retroactively remedy an invalid clause?

No, an invalid clause regarding cosmetic repairs cannot be remedied by a subsequent agreement or amendment to the lease. The invalidity exists from the outset. The landlord can only use a validly drafted contract when renting to a new tenant. However, an individual agreement negotiated separately between the parties may serve as an alternative, provided it is not classified as a standard term and condition.

Who pays for cosmetic repairs if the clause is invalid?

If the cosmetic repair clause in the lease agreement is invalid, the obligation to renovate remains entirely with the landlord. The tenant is not obligated to renovate upon moving out and cannot be required to contribute to the costs on a pro-rata basis. If the tenant has already performed or paid for cosmetic repairs based on the invalid clause, they may be able to reclaim the costs from the landlord, provided the six-month statute of limitations following the end of the lease has not yet expired.

Can the tenant return the apartment in a different color than when they moved in?

In principle, yes. The Federal Court of Justice (BGH) has ruled that the tenant is not required to return the apartment in the same color as when they moved in. A clause that prescribes a specific wall color upon moving out (e.g., “white” or “neutral”) is invalid if it binds the tenant for the entire duration of the lease. However, an agreement requiring the tenant to choose a color upon moving out that can be easily painted over-i.e., no garishly bright or dark shades that would be a burden for the next tenant-is permissible. This distinction is not always clear-cut; in case of doubt, the individual court will decide.

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