Subsequent agreement on final renovation

The VIII. Civil Senate of the Federal Court of Justice (BGH) has ruled that a final renovation clause agreed in the flat handover protocol is not invalid because the tenancy agreement contains an invalid cosmetic repair clause.

The defendant was the tenant of one of the plaintiff's flats. In the form tenancy agreement of 12 February 2000 it was stipulated in § 16 No. 1 that the cosmetic repairs were to be carried out by the tenant during the current tenancy period in a professional manner and regularly in accordance with the type of rented premises, and at least at certain intervals during the tenancy period. § Section 16 no. 2 of the form tenancy agreement provides that the tenant must return the rented premises in a condition corresponding to no. 1. In a flat handover protocol of 6 March 2000 signed by the parties to the tenancy agreement it states under no. 6:

"Mr U. takes over the flat from the previous tenant M. in a renovated condition. He commits himself to the landlord to hand over the flat in a renovated condition as well".

Among other things, the plaintiff sought damages for renovation work after the end of the tenancy in the amount of 1,232.61 €. The district court dismissed the action in this respect. The court of appeal dismissed the plaintiff's appeal against this decision.

The plaintiff's appeal was successful. It led to the reversal of the court of appeal's decision and the remittal of the case to the court of appeal.

The Federal Court of Justice stated that the plaintiff's claim could not be derived from clause No. 1 in § 16 of the tenancy agreement because it contains a rigid schedule and is therefore invalid. Clause No. 2 does not provide a basis either, because it contains a rigid final renovation clause detached from the state of wear and tear, which is also invalid. However, a renovation obligation follows from the final renovation agreement in no. 6 of the flat handover protocol, provided that it is an individual agreement, as assumed by the court of appeal.

The invalidity of such an agreement, which is unobjectionable on its own, cannot be deduced from the coincidence with a form clause which is invalid according to § 307 BGB - in this case the clauses in § 16 of the lease - and a summation effect occurring as a result. Insofar as the coincidence of an individual agreement and a form clause results in an unreasonable disadvantage to the tenant, this only leads to the invalidity of the form clause. The individual agreement, on the other hand, is not subject to the content review pursuant to section 307 BGB. Nor can a nullity of the individual agreement be assumed according to § 139 BGB, according to which in case of nullity of a part, in case of doubt, the entire legal transaction is to be regarded as null and void, if the individual agreement was made subsequently, as in the case to be decided here, and thus the necessary unity of the legal transaction is lacking.

By the protocol of the handover of the flat, the parties rather added another agreement to the existing tenancy agreement without changing the other stock of rights and obligations.

The court of appeal will now have to clarify whether - as claimed by the defendant - the flat handover protocol and the final renovation agreement contained therein is a form intended by the plaintiff for multiple use which, as a general business condition, is subject to the content control pursuant to § 307 BGB.


Judgment of the Federal Supreme Court of 14 January 2009 - VIII ZR 71/08

Previous instances: AG Hannover - Judgment of 9 May 2007 - 552 C 15466/06 ; LG Hannover - Judgment of 25 January 2008 - 4 S 43/07


Source: Press release of the Federal Supreme Court No. 7/2009 of 14 January 2009


Goldberg Attorneys at Law

Lawyer Michael Ullrich, LL. M. (Information Law)

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