The Eighth Civil Senate of the Federal Court of Justice (BGH), responsible inter alia for residential tenancy law, has ruled that a final renovation clause agreed upon in the apartment handover protocol is not invalid merely because the tenancy agreement contains an ineffective cosmetic repair clause.
The defendant was the tenant of an apartment owned by the plaintiff. Section 16, No. 1 of the standard tenancy agreement dated February 12, 2000, stipulates that the tenant must carry out cosmetic repairs professionally and regularly, in accordance with the nature of the rented premises, at least at specified intervals during the tenancy period. Section 16, No. 2 of the standard tenancy agreement provides that the tenant must return the rented premises in a condition corresponding to No. 1. In an apartment handover protocol signed by the parties to the tenancy agreement on March 6, 2000, No. 6 states:
“Mr. U. takes over the apartment from the previous tenant M. in a renovated condition. He undertakes to the landlord to also hand over the apartment in a renovated condition.”
The plaintiff sought, among other things, damages for renovation work amounting to €1,232.61 after the termination of the tenancy. The Local Court dismissed the claim in this respect. The Court of Appeal rejected the plaintiff's appeal against this decision.
The plaintiff's appeal on points of law was successful. It led to the annulment of the appellate judgment and the remand of the case to the Court of Appeal.
The Federal Court of Justice stated that while a claim by the plaintiff cannot be derived from clause No. 1 in Section 16 of the tenancy agreement, as it contains a rigid schedule of deadlines and is therefore invalid, clause No. 2 also provides no basis, as it includes a rigid final renovation clause detached from the state of wear and tear, which is also invalid. However, a renovation obligation arises from the final renovation agreement in No. 6 of the apartment handover protocol, provided that it constitutes an individual agreement, as assumed by the Court of Appeal.
The invalidity of such an agreement, which is unobjectionable in itself, cannot be derived from its concurrence with a standard clause invalid under Section 307 BGB – in this case, the clauses in Section 16 of the tenancy agreement – and a resulting cumulative effect. If an unreasonable disadvantage to the tenant arises from the combination of an individual agreement and a standard clause, this only leads to the invalidity of the standard clause. The individual agreement, however, is not subject to content review under Section 307 BGB. Similarly, the nullity of the individual agreement cannot be assumed under Section 139 BGB, which states that if part of a legal transaction is void, the entire legal transaction is to be considered void in case of doubt, if the individual agreement was made subsequently, as in the present case, and thus lacks the required unity of the legal transaction.
Rather, through the apartment handover protocol, the parties added a further agreement to the existing tenancy agreement without altering the remaining body of rights and obligations.
The Court of Appeal will now have to clarify whether – as asserted by the defendant – the apartment handover protocol and the final renovation agreement contained therein constitute a form intended by the plaintiff for multiple use, which, as General Terms and Conditions, is subject to content review under Section 307 BGB.
Judgment of the BGH of January 14, 2009 – VIII ZR 71/08
Lower Courts: Local Court Hanover – Judgment of May 9, 2007 – 552 C 15466/06; Regional Court Hanover – Judgment of January 25, 2008 – 4 S 43/07
Source: Press release of the BGH No. 7/2009 of January 14, 2009
Goldberg Rechtsanwälte
Lawyer Michael Ullrich, LL. M. (Information Law)
Email: m.ullrich@goldberg.de
