Reader question: Can I demand a later necessary renovation if a cosmetic repairs clause is ineffective, and what cost participation is conceivable?
The German flat was unrenovated when you moved in. In the meantime the decorative condition has deteriorated significantly after years of use. You want to require the landlord to carry out necessary cosmetic repairs. Now neither the blanket reference to an ineffective contractual clause nor the answer that you already took the flat in a used state at the time is sufficient.
Clarify responsibility from the actual contractual situation
§535 BGB generally obliges the landlord to maintain the contractual condition. [BGB535] Whether cosmetic repairs were validly transferred to you is assessed on the basis of the entire contract and the handover at the time.
The BGH case VIII ZR 163/18 of 8 July 2020 concerned a flat handed over unrenovated without appropriate compensation with an invalid standard-form transfer. [BGH16318] This article assumes that particular starting point for the further assessment of claims. It does not declare every handwritten agreement or every older flat automatically to be the same case.
Compare initial condition and current deterioration
Collect the move-in report, dated earlier photos, subsequent works and the present condition room by room. What was already present at handover? What further wear and tear has occurred since then? Mark missing documents honestly.
According to the judgment, the unrenovated initial condition can also be the contractual condition. In the case of a material further deterioration, however, a maintenance claim may still be conceivable. [BGH16318] The passage of many years alone does not replace the factual comparison of conditions. Conversely, “unrenovated at the time” does not mean that every subsequent deterioration must remain without an obligation to maintain.
Describe the desired scope of work precisely
Is it about painting and wallpapering or about technical or substantial damage? Separate the items. The cost participation explained in the judgment concerns the improvement of the decorative condition there through cosmetic repairs. [BGH16318] It is not to be applied in a blanket way to every defective pipe or every safety defect.
Request the concretely required works and provide any existing cost estimate in full. A comprehensive wish package with higher-quality redesign is not automatically the same required scope of maintenance. Likewise, necessary preparatory work should not be omitted in a comparison just so that a sum appears more favourable.
Take the betterment into account when calculating costs
A freshly renovated flat is better decorated than the unrenovated contractual initial condition. The BGH takes this into account through an appropriate cost participation by the tenant, regularly one half, insofar as there are no special circumstances. The exact assessment remains a question of the individual case. [BGH16318]
From this neither follows a general free complete renovation nor an invariably fixed fifty-per-cent tariff. Have required costs, special circumstances and participation examined together. Do not sign an offered cost-sharing agreement as an acknowledgement of other third-party items without review.
Hypothetical route to the specific performance question
In the hypothetical case a tenant compiles earlier and current photos as well as a detailed proposal for specific decorative works. The advice first checks the ineffective transfer, then the material deterioration and finally scope and participation. A mere new colour preference is not presented as an established defect.
Before commissioning yourself, particularly in the case of an advance payment or reimbursement of expenses, further prerequisites must be observed. §536a and the judgment contain their own requirements for this; in the decided case delay played a role. [BGB536a][BGH16318] The contract to a firm is therefore only placed on a clarified basis. The result should be a concrete feasible renovation with a comprehensible distribution of costs.