Dear Forum Members,

A new job, a new family member, the reasons are manifold pushing one to shift one’s flat and move to another.

That is why the lawmaker, acknowledging this need for flexibility, actually reduced the ordinary termination period for tenants to a relatively short one roughly nine years ago, that is as of 1.09.2001: As a rule, therefore, the tenant’s termination notice must be serviced no later than on the third working day (Saturday counts as a working day) in order to terminate the tenancy two months later following the notice, e.g. termination serviced to the landlord no later than 5.10. 2009 (this month’s Saturday is a holiday): end of tenancy 31.12.2009.

Having successfully terminated the contract, it is wise to stay alert to the landlord´s list of demands, if any.

One common bone of contention is the question of whether the tenant is required to carry out certain renovation work known as Schönheitsreparaturen.

The courts had to address this question in many facets. The underlying reason is that the tenant is not required to carry out those Schönheitsreparaturen, unless the terms of the contract state otherwise.

However, if those terms do not stand the test of scrutiny developed by the courts, especially the Federal Court of Justice (BGH) in a recent string of decisions, they are invalid. The tenant then can leave without having to bother about these Schönheitsreparaturen. In fact, he could even claim unjust enrichment, if he had carried them out while unaware that he was not obliged to do so.

In this context, here is another noteworthy judgment by the BGH (BGH, jud.d. 23. 9. 2009 –VIII ZR 344/08) dealing with such a term concerning Schönheitsreparaturen.

The term, found in a number of contracts, reads:

„Die Schönheitsreparaturen umfassen insbesondere:

Anstrich und Lackieren der Innentüren sowie der Fenster und Außentüren von innen sowie sämtlicher Holzteile, Versorgungsleitungen und Heizkörper, das Weißen der Decken und Oberwände sowie der wischfeste Anstrich bzw. das Tapezieren der Wände.“

The BGH ruled that such a term requiring the tenant to paint the roofs and walls of the apartment white is invalid if this obligation covers the time of the tenancy in its entirety, that is, without being restricted to the actual time of moving out and handing back of the apartment. This follows on the heels of an earlier decision by the Court. Here it also pointed out that a term requiring the tenant to carry out Schönheitsreparaturen by painting in “neutral light covering colours or wallpapers” was invalid if not confined to the state of the apartment at the date of moving out.

Regards,

Rechtsanwalt_Jain@yahoo.de