The Eighth Civil Senate of the Federal Court of Justice, responsible inter alia for residential tenancy law, has ruled that in the case of an invalid final renovation clause in the lease agreement, the landlord may be subject to a claim for reimbursement if the tenant, relying on the validity of the provision, carries out cosmetic repairs before moving out.
The plaintiffs had been tenants of an apartment belonging to the defendant since May 1999. In 2004, they renovated the apartment. Some time later, they terminated the tenancy effective May 31, 2006. Assuming they were obligated to do so, they carried out a final renovation before returning the apartment. They are of the opinion that they are entitled to a claim for reimbursement for the final renovation carried out, as no effective obligation to perform cosmetic repairs existed.
With the lawsuit, the plaintiffs assert a claim for reimbursement amounting to €1,620 (€9 per square meter of wall and ceiling area). The local court dismissed the action. The appellate court rejected the plaintiffs' appeal. The plaintiffs' appeal on points of law was successful.
The Federal Court of Justice has ruled that a claim for reimbursement by the plaintiffs due to the unjust enrichment of the landlord is conceivable, because, according to their submission, the plaintiffs carried out the cosmetic repairs based on an invalid final renovation clause and thus without legal basis (Sections 812 para. 1, 818 para. 2 German Civil Code - BGB). The value of the performance rendered without legal basis is to be determined by the amount of the customary, or alternatively, the reasonable remuneration for the renovation work performed. However, it must be taken into account that tenants, when carrying out cosmetic repairs, regularly make use of the option granted in the lease agreement to perform the work themselves or have it done by relatives and acquaintances. In this case, the value of the decorative services is usually determined by what the tenant could reasonably have spent, in addition to their free time, on the necessary materials and as remuneration for the labor of their helpers from their family and friends. The value of the rendered service is to be estimated by the court in accordance with Section 287 of the Code of Civil Procedure (ZPO). In the present case, however, it still needs to be clarified whether a higher value should be applied because, according to the plaintiffs' submission, plaintiff no. 2 works professionally as a painter and varnisher, and thus the performance of the cosmetic repairs may have been part of his independently operated trade.
Conversely, the Federal Court of Justice denied a duty to compensate based on a claim for damages because, under the given circumstances, the defendant cannot be accused of culpability for using invalid clauses.
Similarly, a claim for reimbursement of expenses arising from unauthorized management of affairs (negotiorum gestio) is also excluded. A tenant who carries out cosmetic repairs in the rented apartment due to a perceived obligation is not managing the landlord's affairs, but rather acting solely within their own legal and interest sphere. This is because, by performing cosmetic repairs, the tenant intends to render a service that is legally and economically considered part of the consideration for the use of the rented premises.
As there are no findings regarding the amount of a claim for the surrender of an enrichment that occurred with the defendant, the Federal Court of Justice has referred the matter back to the appellate court.
Judgment of the Federal Court of Justice dated May 27, 2009 – VIII ZR 302/07
Lower Courts:
Local Court of Königstein im Taunus - Judgment of June 1, 2007 – 23 C 179/07
Regional Court of Frankfurt am Main – Judgment of november 6, 2007 – 2-17 S 89/07
Source: Press release of the Federal Court of Justice dated May 27, 2009
Goldberg Rechtsanwälte
Lawyer Michael Ullrich, LL. M. (Information Law)
Email:. Info@goldberg.de
