The XII. Civil Senate of the Federal Court of Justice (BGH), which is responsible for commercial tenancy law, had to decide whether a formal transfer of cosmetic repairs in commercial tenancy law is effective. Civil Senate of the Federal Court of Justice (BGH), which is responsible for commercial tenancy law, had to decide whether a formular 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 maintenance of the rental object.
The defendant had rented a shop from the plaintiff for the period from April 1991 to March 2006 for the operation of an alteration tailor shop. In the form lease agreement, the following was agreed, among other things:
"§ 13 Cosmetic repairs
The landlord is not obliged to carry out cosmetic repairs to the rented property during the rental period, as no costs are calculated for this in the rent.
2….
3.1 The Tenant undertakes, at his own expense, to clean at least every three years in the kitchen, bathroom, shower and toilets and every five years in all other rooms (such as, in particular, wallpapering and painting of walls and ceilings, painting of radiators including heating pipes, interior doors including frames, built-in cupboards as well as windows and exterior doors from the inside, stripping or sanding of parquet floors and subsequent sealing thereof, cleaning of carpets) at the tenant's own expense by skilled craftsmen.
The plaintiff had applied for a declaration that the defendant was obliged to carry out the cosmetic repairs in accordance with the agreement contained in § 13 no. 3.1 of the tenancy agreement. The Regional Court and the Higher Regional Court dismissed the action. The Federal Supreme Court dismissed the appeal against this decision.
According to the legal regulation, it is not the tenant but the landlord who has to carry out the cosmetic repairs. This follows from the obligation regulated in Section 535 (1) sentence 2 of the German Civil Code (BGB) to maintain the rented property in a condition in accordance with the contract during the entire contractual period. In consistent case law, however, the Federal Court of Justice has approved of this obligation being contractually transferred to the tenant. This is also possible by way of a form contract, as is consistent practice.
If, however, the transfer of the cosmetic repairs results from a form contract, it must also be measured as a general business condition against § 305 et seq. BGB (German Civil Code). According to the content review of § 307 BGB, which is also applicable to commercial tenancies, a form clause is invalid if it unreasonably disadvantages the contractual partner of the user contrary to the principles of good faith. In case of doubt, this is to be assumed if the provision is incompatible with the fundamental ideas of the statutory provision from which it deviates (section 307 subsection 2 no. 1 BGB).
This is the case if the tenant - as in this case - is obliged to carry out cosmetic repairs according to rigid deadlines according to the content of the form contract and is thus deprived of the objection that there is no need for renovation at all. Even the landlord, if he were not exempted from this according to § 13.1 of the rental agreement, would only have to renovate depending on the state of preservation of the rental object and thus only if a need for renovation had arisen through use in accordance with the contract. The XII. The XII Civil Senate therefore followed the case law of the VIII Civil Senate on residential tenancy law for commercial tenancy law. The XII Civil Senate therefore followed the case law of the VIII Civil Senate on residential tenancy law, according to which the transfer of cosmetic repairs to the tenant through such form clauses is invalid.
Judgment of the Federal Supreme Court of 8 October 2008 - XII ZR 84/06 -
Previous instances: OLG Düsseldorf of 4 May 2006 - 10 U 174/05 LG Düsseldorf of 18 November 2005 - 15 O 143/05
Source: Press release of the BGH No.188/2008 of 08.10.2008
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
