The VIII Civil Senate of the Federal Court of Justice (BGH), which is responsible for residential tenancy law, had to decide on the validity of a clause. Civil Senate of the Federal Court of Justice (BGH) had to decide on the validity of a clause obliging the tenant to comply with certain colour specifications regarding the design of the wooden parts when returning the rented property. The defendants were tenants of a flat owned by the defendant. The tenancy agreement concluded in 1996 provided, inter alia, in the form that the tenant was obliged to carry out cosmetic repairs. It further stipulated: "Painted wooden parts are to be returned in the colour shade as it was given at the beginning of the contract; coloured painted wooden parts can also be returned painted in white or light colour shades." After the end of the tenancy in 2006, the plaintiffs unsuccessfully demanded that the defendants carry out cosmetic repairs. In their action, the plaintiffs claimed, among other things, damages instead of performance in the net amount of € 7,400.48 for cosmetic repairs not carried out.
The district court allowed the action. On appeal by the defendant, the Regional Court dismissed the action in this respect. On appeal of the plaintiffs, the Federal Supreme Court reversed the judgement of the Court of Appeal and referred the case back to the lower court for a new hearing and decision.
The Federal Supreme Court has continued its case law on the legal requirements for a colour selection clause. The present clause differentiates between "lacquered" wooden parts, which are to be returned (only) in the colour "specified" at the beginning of the contract, and "colour-painted" wooden parts, which can also be returned painted in white or light shades in addition to the original colour. The tenant's obligation not to return painted or colour-painted wooden parts in any colour shade other than those permitted under the clause is in itself unobjectionable and also does not lead to an unreasonable restriction of the tenant in carrying out the cosmetic repairs assigned to him.
The clause is limited in its direct scope of application to the time of return of the rented flat at the end of the tenancy. Viewed in isolation, it is unobjectionable at this point in time, because for the period after termination of the tenancy there is no longer an interest on the part of the tenant in a colour design of the flat corresponding to his ideas, which would have to be weighed against the interest of the landlord in receiving the rented premises back in the colour design desired by him. However, an economically reasonable tenant will be guided by the consideration that if he chooses a colour design that does not correspond to the one agreed upon at the time of return, he runs the risk of having to renew the paint when he moves out, even if this would not yet be necessary according to the degree of wear. However, the resulting de facto restriction of the tenant's freedom - which is to be recognised in principle - to furnish the rented rooms according to his taste is to be accepted. As the Senate has already ruled in the assessment of a colour selection clause for the ongoing cosmetic repairs after the appeal judgment, the landlord's interest in receiving the flat back at the end of the tenancy with a decoration that is accepted by as many prospective tenants as possible cannot be denied against the background of an intended subletting (Senate judgment of 18 June 2008 - VIII ZR 224/07, NJW 2008, 2499). Therefore, the Senate has already pronounced that a colour selection clause referring only to the time of the return of the flat, which does not commit the tenant to a specific way of decoration, but gives him a range ("neutral, light, opaque colours and wallpapers") which fits the most different furnishing styles and is therefore acceptable for a wide range of tenants, does not unreasonably disadvantage the tenant.
The same applies to the clause to be assessed here insofar as it concerns the "colour-painted" wooden parts. It does not fix the tenant to a certain colour shade, but leaves him sufficient scope to decide within the range of light colour shades in addition to the originally existing colour shade.
With regard to "lacquered" wooden parts, however, there is no room for manoeuvre with regard to the colour design, because the clause in this respect fixes the tenant to the only permissible original colour - "predetermined" at the beginning of the contract. When comprehensively assessing the interests of the parties affected by this, this far-reaching restriction of the tenant's freedom of design is not objectionable either. On the part of the landlord, the fact that a change in the colour tone of a transparent varnish or glaze - in contrast to an opaque coat of paint - can either no longer be reversed at all or only by interfering with the substance of the varnished/glazed wooden parts (sanding) is of importance. However, the tenant is not permitted to change the rented rooms in a way that would result in damage to the substance.
Judgment of the Federal Supreme Court of 22 October 2008 - VIII ZR 283/07
Previous instances: Judgment of the AG Hamburg-Altona - Judgment of 20 March 2007 - 316 C 233/06 Judgment of the LG Hamburg - Judgment of 9 October 2007 - 316 S 35/07
Source: Press release of the press office of the Federal Supreme Court (BGH)
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)