Cosmetic repairs in the rented apartment – again and again dispute about cosmetic repairs

Cosmetic repairs are one of the most frequent points of dispute between tenants and landlords. Hard to keep track of the number of lease provisions that specify who has when which cosmetic repairs in the rented apartment to perform. The number of court rulings on this topic is almost as unmanageable. If the tenant finally has to carry out cosmetic repairs, the question arises as to what these must be and what must be taken into account when handing over the apartment. Today's common practice is not the last word in wisdom – therefore, in the final article of this tenant magazine special, suggestions for reforming tenancy law in the area of cosmetic repairs are made.

Neither beautiful nor repairs

What are cosmetic repairs?? This is understood to mean all painting work that is necessary to remove the inevitable wear and tear caused by contractual use. This includes everything that can be renewed with paint, wallpaper and possibly some plaster. According to the case law of the federal court of justice, cosmetic repairs include painting, whitewashing and wallpapering the walls and ceilings, painting the interior doors, the floors, the radiators including the heating pipes, and the windows and exterior doors from the inside. It also depends on the respective circumstances.

Plastic windows, certain doors and many radiators are not suitable for painting due to their material or surface and therefore do not have to be painted. As a rule, walls are no longer whitewashed and floors are no longer painted. The cosmetic repairs also include the painting of utility lines that are laid over plaster, as well as the painting of skirting boards. The lease may also state that built-in furniture must be painted. The repair of surface damage and minor cracks in wood, plaster or masonry is part of the cosmetic repairs if it is common and minor preparatory work for painting or wallpapering.

Also dowels in walls and ceilings must be removed and the holes closed. The tenant does not have to replace damaged tiles, unless an excessive number of dowel holes have been drilled. According to previous case law, 24 holes in the kitchen can be "excessive," while 32 holes in the bathroom is still quite common. However, the tenant is generally required to place the dowels in the joints if possible instead of drilling into the tiles. The discoloration of joints is part of normal wear and tear, the joint compound does not have to be replaced for this reason. Also a dull enamel in the bathtub does not have to be repaired. However, if larger parts of the enamel are chipped off, the tenant may have to repair this.

The sanding and sealing of wooden floors does not fall under the cosmetic repairs. The landlord is basically responsible for parquet floors. The replacement of carpeting laid by the landlord cannot be charged to the tenant. The basic cleaning of a carpet when moving out is also the responsibility of the landlord. By a clause in the lease, however, he can oblige the tenant to clean the carpet. The tenant must take responsibility for damage to the floor covering caused by the tenant – such as burn holes in the carpet or indentations in the linoleum floor caused by penny heels.

The cosmetic repairs must be carried out "professionally" (see our article on page 33: "careful choice of materials pays off"). The question in which color must be painted is disputed in case law. During the rental period, the tenant can paint his apartment any color he likes. However, when moving out, "generally customary color shades" can be demanded. Strict judges accept only white walls, with a loose interpretation, light pastel colors can also be considered. Walls in signal red, violet or black do not have to be accepted by the landlord.

The term "cosmetic repair" is therefore actually misleading: after all, everyone has their own opinion of what is "beautiful". It is also not about real repairs in the sense of repairing something that is no longer functional. The repair and maintenance of the apartment is and remains the responsibility of the landlord.

Cosmetic repairs include:

  • Painting, wallpapering and whitewashing of walls and ceilings
  • Painting floors
  • Painting of radiators and heating pipes
  • Painting the interior doors
  • Painting the inside of exterior doors and windows
  • Painting of skirting boards
  • Painting pipes that lie over plaster
  • Closing of dowel holes

Not included in the cosmetic repairs are:

  • Sanding and sealing wooden floors
  • Renewal and basic cleaning of carpeting
  • Sanding, priming and painting of wall cabinets
  • Painting of windows from the outside, balconies and terraces
  • Repair of window putty
  • Renovation of co-rented basement rooms
  • Painting the hallway and other common areas
  • Removal of damage not caused by the tenant
  • Painting work that becomes necessary after repair or modernization works

Not everything is right that is written in the contract

Many tenants take it for granted that they have to pick up a paintbrush themselves and hand over a renovated apartment when they move out. But this is not so. In principle, even the landlord must bear all cosmetic repairs. But he may transfer this duty to the tenant in the lease agreement. As a rule, the tenant does. But by no means all of these contractual provisions are legal.

In principle, cosmetic repairs may only be imposed on the tenant to the extent that he has caused them himself through wear and tear of the apartment. Provisions that unreasonably disadvantage the tenant are invalid.

A clause in the rental agreement stating that the tenant must make cosmetic repairs when moving in is generally invalid. After all, the tenant should not remove the wear and tear of his predecessor. In practice, however, it is often the case that apartments are rented unrenovated, so the tenant renovates the apartment willy-nilly when he moves in, because he does not want to live in inhabited rooms. He carries out the cosmetic repairs "voluntarily.

Usually, regular cosmetic repairs are required in rental agreements during the rental period. For the various rooms of the apartment are set deadlines within which the cosmetic repairs should be carried out. According to the federal court of justice, reasonable periods are: for kitchens, bathrooms and showers every three years, for living rooms and bedrooms, hallways, hallways and toilets every five years and for other ancillary rooms seven years. Shorter deadlines with which the landlord wants to induce the tenant to renovate more frequently are invalid because they unreasonably disadvantage the tenant. In such a case, the entire provisions on cosmetic repairs are invalid – with the consequence that the tenant does not have to renovate at all.

But even if the usual deadlines of three, five and seven years are written into the lease, they are not necessarily binding. In principle, cosmetic repairs should only be carried out if the rooms have become unsightly – so the individual case must always be considered. The federal court of justice (BGH) has therefore declared "rigid" deadlines to be invalid. A formulation is considered "rigid", which expresses that the cosmetic repairs are to be done without ifs and buts in the mentioned rotation. This is the case, for example, if the deadlines are linked to words such as "at the latest" or "at least". This would force tenants who rarely use their apartment or take great care of it to make unnecessary renovations. Therefore, "rigid" deadlines are invalid – also in this case, tenants no longer need to worry about cosmetic repairs at all. "Soft" formulations, on the other hand, are permissible. If the renovation periods in the lease are designed with words such as "generally", "as a rule", "usually" or "in principle", the grip to the brush is inevitable for the tenant.

Quite logically, the federal court of justice also declared the rigid compensation clauses, as they are contained in most form leases, invalid. The compensation clauses – also known as quota clauses – state that tenants should pay for the wear and tear of the living space, based on the period after the last renovation, when they move out. An example of such a clause: "if the tenant moves out before the expiry of the periods provided for cosmetic repairs, he must fulfill his obligation to carry out cosmetic repairs by paying the percentage of the cost of cosmetic repairs shown below: after 12 months 20 percent, after 24 months 40 percent, after 36 months 60 percent, after 48 months 80 percent."The sum is usually based on the cost estimate of a painting company selected by the landlord. In practice, this settlement portion has so far been offset against the security deposit when moving out.

The BGH decided that these compensation clauses with rigid deadlines and percentages also disadvantage the tenant inappropriately and are therefore invalid. "The fixed basis for calculation does not allow for any consideration of the actual state of maintenance of the apartment," states the BGH in the reasons for its ruling. In the case of an above-average state of preservation of the apartment, a rigid settlement provision leads to the tenant being burdened with in part considerably higher pro rata renovation costs than would correspond to the actual condition of the apartment. If, for example, a tenant very rarely stays in his apartment, the rooms may still be absolutely in order, even if the last renovation was four years ago. In this case, however, he would have had to pay a lot of money to the landlord upon moving out according to the previously common settlement clauses.

Tenants were also disadvantaged by the fact that the landlord was able to choose the most expensive master painter in the entire city to estimate costs. This used to set high renovation costs in favor of the owner, of which the tenant moving out had to pay a certain percentage. The renovations assessed by the master painter were never actually carried out – the walls were still shining in an almost fresh white. For the landlord, the clause was virtually a blank check. Instead of paying, the tenant could at best take up the brush again himself – although he was not obliged to carry out the final renovation and the cosmetic repair was objectively superfluous.

Many lease clauses that explicitly require renovation upon moving out are invalid. A tenant who has carried out the cosmetic repairs at the usual intervals during the rental period and who is to renovate again when moving out, even though it would not yet be necessary to do so again according to the fixed cycle, would be disadvantaged by such a regulation.

There is also no rule according to which the apartment must be handed over in the same condition as when it was taken over. However, a tenant who has rented completely inhabited rooms may be obliged to hand them over in immaculate condition when moving out.

Mostly the conflicts around the cosmetic repairs occur with the departure of the tenant. If the cosmetic repairs have not been carried out or have been carried out poorly, the landlord can claim damages, for example for the loss of rent for the apartment that is temporarily unrentable. This can therefore be expensive for the tenant. However, claims for damages become time-barred after six months, as do claims for payment under the quota clause. The limitation period begins on the day the apartment is returned.

The landlord may control the execution of the cosmetic repairs or the condition of the rooms, however, also during the rental period. However, the courts consider a visit at intervals of about two years to be sufficient – the tenant does not have to allow more frequent inspections. As with all other visits, the landlord must notify himself or a representative in good time beforehand. The tenant does not have to accept a date that is unsuitable for him, he can simply make a counter-proposal himself.

The decisions of the BGH are transferable to many similar cases, but a fundamental judgment is not spoken with it. The jurisprudence of the courts is also inconsistent in many details. It depends therefore in each individual case still on the formulation in the lease contract. Individual inconspicuous words can decide whether the tenant must carry out the entire cosmetic repairs – or can lean back carefree.

Each tenant should therefore in time – before he stirs the wallpaper paste or hands over an unrenovated dwelling to the landlord – the formulations of its lease by the citizens of berlin tenant association examine let. In this way, unnecessary renovation stress and costs as well as unnecessary hassle with the landlord can be avoided.

Exceptional case: GDR rental contract

A special feature applies to rental agreements that were concluded during the GDR era. The phrase "the tenant is responsible for painting maintenance during the term of the lease", which is often used in GDR leases, does not mean that the tenant is obligated to make cosmetic repairs. The tenant can largely determine what is renovated and when. Renovation work is only required if the building fabric of the rooms is at risk.

Careful choice of materials pays off

If the tenant carries out cosmetic repairs in his apartment himself or commissions a craftsman to do so, the work must be carried out professionally and at least in a "medium manner and quality" (§ 243 BGB). In addition to the craftsmanship of the person carrying out the work, the choice of the right paints, varnishes and wallpaper is decisive for the quality of the work.

Tenants should carefully select wallpaper, paint and varnish both for ongoing cosmetic repairs and for the final renovation when moving out, paying attention not only to costs but also to quality. The requirement of a "medium kind and quality" applies to both the current and the final renovation, but is usually raised by the landlord only when moving out.

For walls and ceilings well covering colors are recommended. Cheap is not always good. On the safe side is who uses colors of brand manufacturers. With good paints, one coat is usually enough, with cheaper paints, two or three coats must be applied – the higher consumption then often leads to comparable costs. The DIY stores advise do-it-yourselfers on choosing the right paints, varnishes and wallpapers. Today, they often also have computer-controlled paint mixing machines, with which they mix paints according to customer requirements.

Subfloor damage, minor cracks and dowel holes (after removing the dowels) must be closed with plaster or putty at the latest during the final renovation before painting or wallpapering. If paint is applied directly to the plaster, a primer or maculature must be applied beforehand.

When choosing paint for the kitchen, make sure it is resistant to wet abrasion. Walls and ceilings should be treated here before painting with fat-dissolving means, since otherwise stains can remain. Insulating paints not only prevent soluble substances from escaping or seeping through from the substrate, they also help against nicotine deposits and water stains. Special damp-proof paints for the bathroom contain additives that make the paint resistant to mildew. They are recommended for cosmetic repairs during the rental period, but are not absolutely necessary for final renovations.

Acrylic paint should be used for windows and doors. They are significantly more durable than synthetic resin paints and do not yellow. To avoid peeling paint, which would inevitably lead to claims for damages from the landlord in the case of a final renovation, it is advisable to sand or at least roughen existing layers of paint. Loose parts of paint must be removed. If the windows are well masked, you can also work with a color spray.

For the floor, dispersion floor paint can be used for the final renovation, but more durable are plastic coatings based on PVC. Dirt and rust must be removed before painting heating pipes and radiators, heating paint must be used here without fail.

Painting and varnishing must be applied opaque and evenly, without buildup, free of stains and streaks, and must adhere firmly. Paint runs and noses as well as brush hairs or dirt particles must not be visible, light switches, sockets or window and door fittings must not be painted over. Paint or glue drops on the floor and paint splatters should be removed.

When the tenant moves out, wallpaper must be glued to the pattern and joint without bubbles or wrinkles and must not peel off. Old wallpapers are to be removed before a new wallpapering. There must be no overlaps or open seams between the wallpaper strips. Woodchip and some embossed or non-woven wallpapers can be painted over up to three times. However, if the structure is no longer recognizable after repeated repainting or cracks appear in the paint, a basic renovation is due. The repainting of normal patterned wallpaper, on the other hand, is not a professionally executed cosmetic repair.

Useful tips on the internet

What do cosmetic repairs cost?

Before a professional craftsman is commissioned with the renovation, one should obtain at least three non-binding cost estimates.
At
www.Blue work.En,
or in the yellow pages you can find addresses of painting companies in the area.
In job auction portals like www.Jobdoo.De can put the desired work out to bid. Craftsmen can then bid for the job – like at an auction. Attention: the cheapest craftsman is not always the best one! And for not professionally executed work, the tenant is liable for damages.

Official help?

The costs of cosmetic repairs in the apartment are also included in the state support payments to ensure the livelihood of the unemployed as well as social welfare recipients. But what if on day X there is no money left for paint, brushes and wallpaper?

The federal labor office (BA) pays for the "benefits to ensure subsistence", the municipality pays the rent costs. Cosmetic repairs in the apartment, however, are part of the benefit rule set, so to be paid by the BA. Recipients, like welfare recipients, are required to independently set aside and save approximately ten percent of the assistance received for "contingencies," and this includes cosmetic repairs. But what if the saved amount has just been spent on new cribs?

Recipients of basic security benefits, whether unemployment benefit II under social code book II (formerly: unemployment assistance), or social assistance recipients under social code book XII, are referred to the payments received for cosmetic repairs in the apartment in case of need. The press officer of the senate department for social affairs, roswitha steinbrenner, points out that the formation of reserves for cosmetic repairs was a reason for increasing the former social assistance rate to the current one. Since the social welfare serves as a reference system for the basic security according to SGB II, this also applies to the unemployment benefit II.

In both codes the possibility of a loan is intended, if there are no reserves. To pay off this loan, the responsible benefits office would then withhold monthly installments from other support benefits until the amount is repaid. Up to a maximum of ten percent of the benefit may be an installment. No matter how tight things get financially for the beneficiary in the case, this procedure, according to roswitha steinbrenner, establishes "equal treatment with those who save regularly to be able to cover their needs". For not able to work, seriously ill or disabled people who receive basic security under SGB XII, an additional benefit may be considered. If you are not in a position to carry out the cosmetic repairs yourself, you can – on application – be reimbursed for the costs of a specialist company. The german tenants' association demands in principle the reimbursement of the cosmetic repairs. If they were contractually agreed, they belong to the maintenance costs.

The unemployed person can apply to the job center for a loan according to § 23 SGB II. First, however, the job center checks whether the applicant cannot pay the amount needed for renovation from his or her possibly existing assets. If yes, the unemployed person would have to fall back on it. But: not everything has to be used for this purpose. Thus, according to andre zimmermann of the jobcenter steglitz-zehlendorf, "no life insurance has to be liquidated or the car sold". Cash must only be made available from existing assets if this is possible "without loss of value. If the job seeker has no assets at all, then he can be granted a loan. The job centers have discretionary powers for this optional benefit.

Unemployed persons, on the other hand, who receive unemployment benefit I from the BA can apply for a subsidy for the cosmetic repairs. This has prospect on success – always naturally also there after the discretion of the case worker -, if the unemployment pay lies straight some euro over the standard benefit of the basic safety device then used for the comparison.

Last hurdle: apartment inspection

The apartment has been vacated, the cosmetic repairs have been carried out, as far as contractually required – now comes the last hurdle: handing over the apartment to the landlord. Well advised is, who has to this date an expert at its side.

To the apartment acceptance by the landlord recommends the citizen of berlin tenant association (BMV) in each case witnesses to take along. These can be friends or colleagues or expert advisors of the BMV such as rudiger beer, claus greil or dietrich eulitz (contact and conditions under help to remove the apartment). Some landlords bring a painter or other craftsman with them for the acceptance inspection. Then it is even more advisable and helpful to have an expert on your side.

The large housing associations use multi-page handover protocols; in the consultants' experience, private homeowners often do without written documents. Then the tenant should make a protocol himself and have it signed by the landlord – but in any case by the witnesses. The protocol records whether the landlord or his representative accepts the apartment as found, or whether and what defects he finds.

Leaving the apartment in "contractual" or "proper condition" means not only painting the walls, interior windows, doors and so on, but also removing any fixtures that have been made, such as cabinets, suspended floors, pipe coverings, carpets, laminate or wooden floorboards – unless there are other arrangements with the landlord. If scratches in the parquet were already present when moving in, no repair can be demanded. But: this must already have been logged when moving in. Existing defects and damages can also be reported after moving in, so that their removal cannot be demanded when moving out.

Damages, which the tenant caused, have to be repaired by him. A carpet belonging to the rented apartment may look normally used, but not show any stains. These are to be removed. Cracked door panes must be replaced and cracked tiles must be replaced – if the damage is not due to normal wear and tear.

The equipment of the fitted kitchen and bathroom are also checked during the handover of the apartment. According to dietrich eulitz' experiences, popular reproaches of landlords are not cleaned grease filters in the cooker hood and calcified shower heads. If you clean or replace the grease filter and decalcify the shower head in a vinegar bath before moving out, you are on the safe side. It proves after experience of the BMV advisors also again and again as favorable to score with such relatively simply and economically accomplished measures. This is then to a certain extent "negotiating material" that can move the landlord to be accommodating.

Cosmetic repairs do not have to be carried out by the tenant who moves out on the basis of his own justified termination without notice. If the landlord plans construction work in the apartment after moving out, case law grants him a monetary claim in lieu of the renovation work performed.

There are rental agreements according to which the apartment is to be handed over broom-clean and unrenovated. Consultant beer has already experienced that "tenants had renovated the apartment, although they were not contractually obliged to do so". Those who then carry out the renovation in an unprofessional manner are entitled to make improvements at their own expense, even if they would not have had to renovate.

Caution trap!

If neither the tenant (out of ignorance) nor the landlord (who knew very well what he was doing) signed an acceptance protocol, nor was the condition of the apartment found to be proper in the presence of witnesses, the landlord may commission a painting company he trusts to carry out the renovation work. Thousands of euros in costs can quickly accumulate without the tenant who has moved out being informed. The landlord offsets the fee for this work against the deposit, which he has six months to repay. Beyond that he demands amounts from the former tenant. Some landlords also try to foist the dismantling of old fixtures carried out by previous tenants on the tenant moving out. But one can defend oneself: the landlord has the burden of proving that the tenant made the improvements himself.

Reforms called for in cost allocation

Around ten percent of households move every year in berlin. For a large part of the tenants come to the removal costs additional expenditures for the renovation of the old dwelling. The removal of unavoidable wear and tear can cost 5000 euros or more – a multiple of the monthly rent is the rule. Despite the substantial economic meaning (estimated costs for cosmetic repairs in berlin: approximately 500 million euro annually) and the strong load of the courts with disputes in this area the legislator made so far no efforts to intervene into the fight around the costs for cosmetic repairs regulating.

According to the law, cosmetic repairs are the responsibility of the landlord. This is plausible, because it is a sub-case of repairs of the rental property. The almost complete passing on of this landlord's obligation to the tenant by means of explicit and effective contractual provisions – as is now common practice – renders the statutory provision absurd. At least in price-free housing, there is in fact no rent reduction for the assumption of cosmetic repairs by the tenant, since correspondingly different types of contracts do not compete with each other. Rather, the system has reversed. There is, for example, in the berlin rent index an appropriate surcharge in the local comparison rent, if the landlord carries out the cosmetic repairs and does not pass them on to the tenant. Since the exchange "assumption of the cosmetic repairs by the tenant against rent reduction" does not exist, the distribution of the costs must be regulated anew, is called it in addition with the citizen of berlin tenant association (BMV). The legal experts of the association developed a draft of a legal regulation, which is to be discussed now in the committees also of the german tenant federation. According to the BMV proposal, the obligation to carry out the painterly repairs remains with the landlord. However, the tenant can still contractually pass on the performance to the tenant – in this case, however, the type and scope of cosmetic repairs are left to the tenant's discretion. The tenant is only obliged to take measures that are necessary to prevent damage to the substance of the property. If the landlord does not want to expose himself to the market risk that unrenovated apartments entail, then he is free to upgrade his property through suitable measures. In fact, the proposal advocates initial renovation by the tenant. This seems to make sense because the tenant usually wants to paint his apartment according to his own ideas when moving in. It also avoids duplication of effort. "It will not be easy to find allies for this proposal," suspects dr. Haberle, legal advisor at the BMV.

In the context of the debate about the tenancy law reform in 2001, the judge at the district court of pinneberg, dr. Werner hinz, addressed the public with a similar proposal. But neither in two bills of the lands of the federal republic lower saxony and north rhine-westphalia nor in the position statement of the bundesrat this demand had found entrance. Nevertheless, the bundesrat also demanded a statutory regulation on cosmetic repairs at the time, but this was then not adopted by the bundestag, allegedly because the parties to the rental agreement had not been given sufficient scope for individual regulations.

That there is a need for further reform is shown by recent proposals, for example by the tenancy law commentator dr. Hans langenberg, former judge at the hamburg district court. The considers first a definition of the cosmetic repairs for necessary, likewise their passing on on the tenant for meaningfully, whereby this would not have to arise however at the end of a lease for costs, if with continuation of the lease cosmetic repairs were not necessary. If the apartment has been renovated, a quota clause may be agreed upon, according to which the tenant can be obligated to make partial payments depending on the condition of the living space and the length of time lived in the apartment. This proposal, however, departs too much from the legal model and also does not sufficiently take into account the freedom of design for tenants, according to the assessment of the tenants' association.