Tenant may carry out cosmetic repairs on his own account

The Federal Court of Justice (BGH) has ruled that a clause in a residential tenancy agreement is invalid due to unreasonable disadvantage to the tenant if the clause imposes on the tenant the obligation to carry out cosmetic repairs without giving him the option to carry out this work himself.

The defendants were tenants of a flat of the plaintiff housing association in Munich until September 2007. The tenancy agreement contains the following provisions regarding cosmetic repairs:

"The tenant is obliged to have the cosmetic repairs, such as whitewashing, painting or wallpapering of the walls and ceilings, painting and treatment of the floors, windows and doors, carried out in the flat, (...)"

Among other things, the plaintiff sought damages for failure to carry out cosmetic repairs in the amount of € 7,036.35. The district court dismissed the action in this respect. The district court dismissed the landlord's appeal.

The landlord's appeal against this decision was unsuccessful. The VIII Civil Senate of the Federal Court of Justice, which is also responsible for residential tenancy law, ruled that the tenants were not obliged to carry out cosmetic repairs. Civil Senate of the Federal Court of Justice, which is also responsible for residential tenancy law, ruled that the tenants were not obliged to carry out cosmetic repairs. The wording of the clause on cosmetic repairs used in the case at hand ("to be carried out") can in any case also be understood to mean that the tenant must have the work carried out by a skilled craftsman, excluding the possibility of self-execution. In this interpretation - the most "customer-hostile" interpretation - the clause does not stand up to a review of its content pursuant to Section 307 (1) BGB.

According to the case law of the Federal Court of Justice, the passing on to the tenant of the obligation to carry out cosmetic repairs, which is incumbent on the landlord according to the law, is in principle permissible by way of a form contract. However, the Federal Court of Justice also pointed out that the practice of passing on the cosmetic repairs to the tenant, which has become common practice, is also characterised by the fact that the tenant can carry out the cosmetic repairs assigned to him himself. If the tenant is deprived of the possibility to carry out the cosmetic repairs himself - if necessary by calling in relatives and acquaintances - the passing on of this work constitutes an unreasonable disadvantage for the tenant. This is because cosmetic repairs - regardless of whether they are to be carried out by the tenant or the landlord - are only to be carried out professionally and of average quality. However, this does not necessarily require the commissioning of a specialist company.

 

Judgment of the Federal Supreme Court of 9 June 2010 - VIII ZR 294/09

Lower courts:

AG Munich - Judgment of 9 December 2008 - 453 C 4014/08

LG München I - Judgment of 30 September 2009 - 15 S 6274/09 (published in NJW 2010, 161)

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

E-mail: info@goldberg.de

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