No cosmetic repairs at the apartment despite "renovation agreement" with previous tenant

The Federal Supreme Court has ruled that the transfer of beauty repairs by form in the case of unrenoviert handed over flat is also ineffective in the case of a "renovation agreement" between tenant and previous tenant.

From January 2009 to the end of February 2014, the defendant was the tenant of an apartment of the plaintiff which had been handed over to him at the beginning of the lease in an unrenovated condition and with traces of use by the previous tenant. The form rental agreement used by the plaintiff provided that the tenant was responsible for the cosmetic repairs. At the end of the rental period, the defendant carried out cosmetic repairs which the plaintiff considered defective and therefore had rework carried out by a painter at a cost of 799.89 euros. On account of this amount, the plaintiff claimed damages - offsetting other claims asserted between the parties - for cosmetic repairs that had not been carried out or had been carried out incorrectly.
The defendant has relied on the case law of the Federal Supreme Court (cf. for example BGH, Urt. v. 18.03.2015 - VIII ZR 185/14), according to which a form clause imposing on the tenant of an unrenoviert or renovation-needily handed over apartment the cosmetic repairs without adequate compensation is ineffective according to § 307 para. 1 sentence 1, para. 2 no. 1 BGB. The plaintiff, on the other hand, was of the opinion that this case law could not be applied here in view of a "renovation agreement" concluded between the defendant and the previous tenant in 2008. In this agreement, the defendant had taken over a number of objects from the previous tenant, committed himself to paying an unspecified amount of money and agreed to take over the renovation work.
The action had been successful in the previous instances. The Court of Appeal had based its decision on the consideration that, in view of the agreement between the defendant and the previous tenant, it was in the interests of treating the defendant as if the plaintiff had handed over the rented property to him in a renovated state. With the appeal permitted by the Court of Appeal, the defendant (among others) continued to pursue his claim for dismissal.

The Federal Supreme Court has overturned the appeal ruling.

In the opinion of the BGH, a form clause which imposes on the tenant of an unrenoviert or renovation-needy handed over dwelling the beauty repairs without appropriate compensation is ineffective also if the tenant obligated himself by mutual agreement opposite the former tenant to carry out renovation work in the dwelling.

According to the case-law of the Federal Supreme Court, the passing on of the obligation of the lessor under the legal regulation (§ 535 Paragraph 1 Sentence 2 BGB) to carry out ongoing cosmetic repairs in the case of an apartment left to the lessee unrenoviert or in need of renovation did not stand up to the content control according to § 307 Paragraph 1 Sentence 1, Paragraph 2 No. 1 BGB, if the lessor did not grant the lessee adequate compensation, which placed him as if the lessor had left him a renovated apartment. Because such a provision obliges the tenant to eliminate all traces of use of the previous tenant and leads to the fact that the tenant must renovate the apartment prematurely or, if necessary, return it in a better condition than he had received it from the landlord himself.

These principles also remained applicable if the tenant concerned had undertaken to carry out renovation work in the rented apartment by bilateral agreement with his previous tenant, as shown here. Such an agreement is limited in its effects from the outset to the parties affecting it, i.e. the tenant and the previous tenant. It is therefore unable to influence the validity of the obligations contained in the rental agreement between the landlord and the new tenant; in particular not in such a way that the landlord would be placed in such a position as if he had handed over a renovated apartment to the new tenant.

previous instances
AG Celle, local court rouling of 25.05.2016 - 14 C 1146/14
LG Lüneburg, regional court ruling of 16.11.2016 - 6 S 58/16

31.08.2018