The VIII. Civil Senate of the Federal Court of Justice has ruled that in the case of an invalid final renovation clause in a tenancy agreement, the landlord may be subject to a claim for reimbursement if the tenant carries out cosmetic repairs before moving out in reliance on the validity of the provision.
The plaintiffs had been tenants of a flat owned by the defendant since May 1999. In 2004 they renovated the flat. Some time later they terminated the tenancy with effect from 31 May 2006. Assuming that they were obliged to do so, they carried out a final renovation before returning the flat. They are of the opinion that they are entitled to compensation for the final renovation carried out because there was no effective obligation to carry out the cosmetic repairs.
In their action, the plaintiffs asserted a claim for compensation in the amount of € 1,620 (€ 9 per sqm of wall and ceiling area). The district court dismissed the claim. The court of appeal dismissed the plaintiffs' appeal. The plaintiffs' appeal was successful.
The Federal Court of Justice (BGH) ruled that the plaintiffs' claim for reimbursement due to unjust enrichment of the landlord could be considered because, according to their submissions, the plaintiffs had performed the cosmetic repairs on the basis of an ineffective final renovation clause and thus without legal grounds (section 812 (1), section 818 (2) BGB). The value of the service rendered without legal ground is measured in this respect according to the amount of the usual, alternatively the reasonable remuneration for the renovation work carried out. However, it must be taken into account that tenants regularly make use of the option granted in the tenancy agreement when carrying out cosmetic repairs to do the work themselves or to have it done by relatives and acquaintances. In this case, the value of the decoration services is usually measured according to what the tenant reasonably spent or should have spent in addition to a commitment of free time as costs for the necessary material and as remuneration for the work of his helpers from the circle of relatives and acquaintances. The value of the service rendered is to be estimated by the court according to § 287 ZPO. In the present case, however, it remains to be clarified whether a higher value is to be assessed because, according to the plaintiff's statement, the second plaintiff works professionally as a painter and varnisher and the execution of the cosmetic repairs was thus possibly the object of his independent professional activity.
On the other hand, the Federal Supreme Court denied an obligation to pay compensation on the basis of a claim for damages because, under the given circumstances, the defendant could not be accused of culpability due to the use of invalid clauses.
Similarly, there is no claim for reimbursement of expenses arising from management without a mandate. The tenant who carries out cosmetic repairs in the rented flat on the basis of a supposed obligation does not conduct a business of the landlord, but only acts in his own legal sphere and interests. By carrying out the cosmetic repairs, the tenant intends to render a service which is to be regarded legally and economically as part of the remuneration for the transfer of use of the rented premises.
As there is a lack of findings on the amount of a claim for restitution of enrichment incurred by the defendant, the Federal Supreme Court referred the case back to the Court of Appeal.
Judgment of the Federal Supreme Court of 27 May 2009 - VIII ZR 302/07
Lower courts:
AG Königstein im Taunus -Judgement of 1 June 2007 - 23 C 179/07
Frankfurt am Main Regional Court - Judgment of 6 November 2007 - 2-17 S 89/07
Source: BGH press release of 27 May 2009
Goldberg Attorneys at Law
Lawyer Michael Ullrich, LL. M. (Information Law)
E-mail:. Info@goldberg.de
