When you return the property you notice a strong smell. A tradesperson offers a complete repaint and writes on the quote: Nikotinssanierung. Before this becomes a claim against the vacating tenant you need an answer to a narrower question: which works are actually necessary because of which identified impairment?
Examine two justifications separately
An obligation to carry out cosmetic repairs can arise from an effective agreement. A claim for damages requires a different assessment. Under § 538 BGB the tenant is not liable for deteriorations resulting from proper use under the contract. § 280 BGB links compensation to a breach of duty and the damage thereby caused. An ineffective renovation clause therefore does not become usable retrospectively merely by calling it smoke damage. [B538, B280]
In the case of smoke marks the BGH drew a specific boundary: the decisive factor was whether the deterioration could still be remedied by cosmetic repairs or whether restoration beyond that was required. A particularly early need for renovation alone was not sufficient. In the decided case the claim failed because, according to the landlord’s own submissions, wallpapering, painting and varnishing were sufficient. [BGH37]
Ask the tradesperson for a diagnosis
As editorial preparation you can return a blanket quote and request a comprehensible description of services. For each room the existing condition, the affected surface, the intended intervention and its justification should be distinguished. An estimated number of cigarettes does not replace these details any more than the mere observation that the flat smells unpleasant.
In particular, ask for an explanation of which items are ordinary decorative works and which allegedly go beyond that. The term used in the judgment of cosmetic repairs refers to § 28 Absatz 4 II. BV. That provision includes, among other things, wallpapering and painting of walls and ceilings as well as certain interior coatings. The designation “special treatment” therefore does not alone determine the legal classification. A specific coating is not categorised here as a repair of damage as a matter of course. [BGH37, BV28]
A separate comparable case
In the hypothetical Room A the tradesperson proposes replacing the wallpaper and a coat of paint. In Room B they additionally assert a deeper-seated impairment, but have not yet described it. You treat the two rooms separately: A initially leads to an examination of the renovation agreement; for B you demand, before a damage claim, a reliable explanation of condition, cause and required intervention. A single overall quote would obscure these two open questions.
That is not an assurance that Room B is liable for compensation. Even a technically justified additional work does not yet answer all questions about causation, responsibility and extent of costs. Secure existing move-in documents, return inspections and the statements of the tradesperson before the condition is changed by works. In case of serious dispute a legally aligned evidence preservation can be sensible.
Before the claim letter
Have the renovation clause, the alleged damage and, if applicable, any special agreement on smoking assessed separately. The judgment does not evaluate any arbitrary present-day smoking ban clause. Likewise this procedure does not address smoke nuisance to other flats nor a termination during an ongoing tenancy.
Do not wait with a technical assessment until all works are completed: § 548 BGB provides for a six-month limitation period from return for certain claims for replacement due to alterations or deteriorations. You must have the specific running of the period and possible further legal questions examined separately. Only with a clarified basis for the claim, a comprehensible scope of work and secured evidence can a concrete claim be prepared factually. [B548]