The XII Civil Senate of the Federal Court of Justice (BGH), responsible, among other things, for commercial tenancy law, had to decide whether a standardized transfer of cosmetic repairs in commercial tenancy law is effective if the tenant would be obliged to carry out the work within rigid deadlines and irrespective of the state of preservation of the rented property.
The defendant had rented a shop from the plaintiff for the operation of a tailor shop for the period from April 1991 to March 2006. Among other things, the following was agreed upon in the standardized lease agreement:
Ҥ 13 Cosmetic Repairs
1. The landlord is not obliged to carry out cosmetic repairs to the rented property during the rental period, as no costs for this are calculated in the rent.
2….
3.1 The tenant undertakes, at their own expense, at least every three years in the kitchen, bathroom, shower, and toilets, and every five years in all other rooms, to have cosmetic repairs carried out by skilled tradesmen at their own expense (specifically, wallpapering and painting walls and ceilings, painting radiators including heating pipes, interior doors including frames, built-in cupboards, as well as windows and exterior doors from the inside, stripping or sanding parquet floors and then sealing them, cleaning carpets).
The plaintiff had sought a declaration that the defendant was obliged to carry out cosmetic repairs in accordance with the agreement contained in § 13 No. 3.1 of the lease agreement. The Regional Court and the Higher Regional Court dismissed the action. The Federal Court of Justice rejected the appeal filed against this decision.
According to statutory provisions, it is not the tenant, but the landlord, who is responsible for carrying out cosmetic repairs. This stems from the obligation stipulated in § 535 para. 1 sentence 2 of the German Civil Code (BGB) to maintain the rented property in a contractually compliant condition throughout the entire contract period. However, in its consistent jurisprudence, the Federal Court of Justice has approved that this obligation can be contractually transferred to the tenant. This is also possible by means of a standardized contract, which corresponds to established practice.
If, however, the transfer of cosmetic repairs results from a standardized contract, it must also be measured against §§ 305 et seq. of the German Civil Code (BGB) as a general term and condition. According to the content control of § 307 BGB, which is also applicable to commercial leases, a standardized clause is ineffective if it unreasonably disadvantages the contracting party of the user contrary to the principles of good faith. This is to be assumed in case of doubt if the provision is incompatible with essential fundamental ideas of the statutory regulation from which it deviates (§ 307 para. 2 No. 1 BGB).
This is the case if the tenant – as here – is obliged to carry out cosmetic repairs according to rigid deadlines based on the content of the standardized contract, thereby precluding the objection that there is no need for renovation at all. Even the landlord, if not exempted by § 13.1 of the lease agreement, would only have to renovate depending on the state of preservation of the rented property, and thus only when a need for renovation had arisen due to contractual use. Therefore, the XII Civil Senate has adopted the jurisprudence of the VIII Civil Senate concerning residential tenancy law for commercial tenancy law, according to which the transfer of cosmetic repairs to the tenant through such standardized clauses is ineffective.
Judgment of the Federal Court of Justice of October 8, 2008 – XII ZR 84/06 –
Lower courts: Higher Regional Court Düsseldorf of May 4, 2006 – 10 U 174/05 Regional Court Düsseldorf of november 18, 2005 – 15 O 143/05
Source: Press release of the Federal Court of Justice No. 188/2008 of October 8, 2008
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
