Cosmetic Repairs in the Tenancy Agreement: When the Clause Is Invalid
Many tenancy agreements shift the cosmetic repairs onto the tenant. Very often, however, this clause is invalid – in which case the obligation stays with the landlord and you do not have to redecorate when you move out.
What are cosmetic repairs?
Cosmetic repairs are the visual refurbishment of the flat: wallpapering, painting walls and ceilings, as well as varnishing radiators, interior doors and the inside of windows. They do not include repairs to the building fabric (e.g. defective wiring) or sanding down parquet flooring.
By law, the landlord bears this obligation: under § 535 (1) BGB, the landlord must keep the rental property in a condition fit for use as agreed. § 538 BGB makes clear that normal wear and tear from use as agreed is not to be borne by the tenant.
When is the clause invalid?
The landlord may transfer the cosmetic repairs to the tenant by means of a clause – but only within narrow limits. The case law of the BGH has declared numerous widely used clauses invalid. Even a single invalid component renders the entire clause void (the prohibition on validity-preserving reduction).
- Rigid deadlines: fixed redecoration intervals ("every 3/5/7 years") that ignore the actual condition are invalid.
- Flat handed over unrenovated: if the flat was handed over unrenovated or in need of redecoration, shifting the obligation without adequate compensation is invalid.
- Quota / settlement clauses: clauses requiring a pro-rata share of the costs for not-yet-due redecoration upon moving out are invalid.
- Final-redecoration clause: a rigid obligation to redecorate when moving out regardless of the condition is invalid.
- Execution requirements: overly restrictive requirements on colours or techniques during the tenancy are invalid.
What does this mean for you?
If the clause is invalid, the obligation falls back entirely on the landlord (§ 535 BGB). In that case you do not have to redecorate during the tenancy or when moving out – not even on a pro-rata basis. You can reclaim a final redecoration you have already paid for or a deposit withheld on that ground.
Important: the invalidity applies automatically; you do not have to object to it. So do not let an obligation stated in the contract pressure you into redecorating prematurely.
How to check your clause
Read the clause on "cosmetic repairs" or "maintenance" in your tenancy agreement and watch out for rigid deadlines, a final-redecoration obligation, quota arrangements, and whether the flat was handed over already renovated. When in doubt, an automated contract check identifies exactly such clauses.
Relevant law
Frequently asked questions
Only if a valid cosmetic repairs clause provides for it. A great many clauses are invalid – in which case you do not have to redecorate, because the obligation stays with the landlord (§ 535 BGB).
Fixed redecoration intervals that ignore the actual condition of the flat. The BGH has declared such fixed-schedule plans invalid; they render the entire clause void.
As a rule, no. If an unrenovated flat is handed over, shifting the cosmetic repairs onto the tenant without adequate compensation is invalid according to the case law of the BGH.
Not during the tenancy. Requirements forcing you into a particular choice of colour or execution are invalid. On returning the flat, decoration in neutral, light shades may be required.
If you redecorated or paid on the basis of an invalid clause, you can in principle reclaim the costs, or reclaim a deposit that was withheld on that ground.
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General legal information based on your contract — not individual legal advice.