One tenant moves out, the new one moves in. The question that arises between the two parties and the landlord of the property is who will be responsible for the renovation. A current BGH ruling strengthens tenants’ rights – right?

A landmark ruling by the BGH has now clarified who has to pay for cosmetic repairs on an apartment that has not been renovated.

BEvery time I move, tenants ask themselves the same questions over and over again: Do I have to renovate my apartment before I hand it over? Or is the landlord obliged to do cosmetic repairs? And what if I took over the apartment without renovating it?

Cosmetic repairs include anything that wears out on the home with normal use that can be fixed with a bit of paint and wallpaper. White walls and ceilings or wallpapering are just as important as painting radiators, pipes and windows from the inside. According to the Federal Court of Justice (BGH), an apartment is considered to be renovated if significant signs of use have been remedied in such a way that the “overall impression of a renovated apartment” is created. The landlord is responsible for extensive maintenance or repair measures such as sanding down parquet or replacing joints in the bathroom.

Condition of the apartment is irrelevant

If the rental agreement does not contain any express agreements on cosmetic repairs, the landlord is responsible. If there are renovation clauses in the rental agreement, tenants should check whether they are valid. If they turn out to be ineffective, the landlord must carry out the renovation himself or reimburse the tenant for the costs.

It is not permitted, for example, if the landlord stipulates renovation work after specified periods of time or generally stipulates that renovations must be carried out when moving out – regardless of the condition of the apartment. The only decisive factor in determining whether cosmetic repairs have to be carried out is whether the apartment really needs renovation or not.

If the tenant has taken over the apartment in an unrenovated condition, he does not have to paint it at all, neither during the rental period nor when moving out – even if the rental agreement states something else. Unless the landlord pays him compensation. The federal judges made this clear in a landmark judgment in March 2015 (Ref .: VIII ZR 185/14). Otherwise he might have to leave the apartment more beautiful than he found it, they argued.

Two fundamental judgments could strengthen tenants from now on

But does that also apply if the previous tenant and tenant have made an agreement on the renovation? So it was in a case that the BGH had to negotiate this week: In Celle, a tenant had taken over an apartment without renovation and promised the previous tenant the renovation. For this he got the carpet at a smaller compensation payment. Before moving out, he painted himself, but the walls of the renting housing association were too streaky – they had a painter come for just under 800 euros. The tenant was supposed to pay, but he refused and referred to the basic judgment of the Federal Court of Justice of 2015.

The federal judges have now taken a clear position on this question in a further fundamental ruling: Tenants do not have to delete an unrenovated apartment when they move out, even if they have contractually guaranteed this to the previous tenant. Such an agreement has no influence on the obligations of the tenant and landlord in the rental agreement (Az. VIII ZR 277/16).

And what does that mean for tenants and landlords? The German Tenants ‘Association welcomes the ruling as a strengthening of tenants’ rights. The resident only has to look at his contract to find out whether he is obliged to carry out cosmetic repairs. All tenants who have made such an agreement can now avoid a renovation. In the long term, however, the ruling could also have negative consequences for tenants. Renovation agreements, through which tenants often save double costs and effort, could become a rarity, as landlords no longer accept them. The homeowners association Haus und Grund warns its clientele against continuing to get involved in such arrangements and advises landlords to take care of the cosmetic repairs themselves in the future or, if they have been effectively transferred beforehand, only refurbish the apartment from the tenant.