Reader question: Is an offset against the cash deposit excluded solely because more than six months have passed since the return?
More than six months after returning the German flat you receive a deposit statement. The landlord offsets an alleged damage against your cash deposit balance. You consider the claim time-barred because of the lapse of time. Two questions must now be kept separate: Does the alleged damage exist at all, and can it be used for set-off despite intervening limitation?
Record the actual return and the statement
Section 548(1) BGB provides a six-month limitation from the return of the leased object for certain claims for compensation for changes or deterioration. [BGB548] Therefore secure the actual handover process, not only the contractual end of the tenancy.
Also have the deposit agreement, payment, any existing statements and the declaration of set-off ready. This article concerns a cash deposit after a terminated residential tenancy. A guarantee or access during an ongoing contract is not treated the same without further examination.
Limitation and set-off are different assessments
Section 215 BGB contains an exception: intervening limitation does not exclude set-off if the claim was not yet time-barred at the time when set-off was first possible. The general requirements follow, among other things, from Section 387. [BGB215][BGB387]
The practical question therefore does not end with “Six months have passed”. At the same time §215 does not legitimise an unfounded claim. Type of claim, factual prerequisites, timing and the specific security agreement belong together in the assessment.
Understand the special significance of the cash deposit agreement
In judgment VIII ZR 184/23 of 10 July 2024 the BGH interpreted the typical cash deposit agreement in a residential tenancy. The possible satisfaction by set-off should as a rule not fail on the ground that the landlord only asserted the claim for monetary compensation instead of repair after limitation had occurred. [BGH18423]
This is a specific legal classification of the security and set-off situation. From it neither follows an unlimited right to retain any deposit nor the finding that every later repair amount is owed. A differently structured contract or a different type of claim must be classified separately.
Continue to contest or confirm the alleged damage precisely
The judgment precisely shows the limit: the BGH remitted the case so that the factual prerequisites of the alleged claims for damages could be established. [BGH18423] The limitation question did not replace this factual examination.
Therefore prepare the move-in and return condition, protocols, dated photos and the specific cost breakdown. Which damage is being attributed to you? What work is said to have been required? What is disputed about cause or amount? Do not abandon a factual objection merely because set-off might be legally possible.
Hypothetical case with two separate objections
In the invented case a tenant receives a late set-off for a damaged spot. They rely on limitation and additionally submit a move-in photo showing the same spot already visible.
The advice first examines the special set-off situation on the basis of all timings and the cash deposit agreement. Independently of that, the alleged new causation of the damage is compared with the earlier condition. The example promises neither full payout nor a justified deduction.
Request an itemised response
Ask for a full deposit statement with balance, interest, every counterclaim and any amount already paid out. The final line item should then name both the legal and the factual objections. That way your reaction does not hinge on an allegedly universal six-month rule, and a disputed damage remains actually disputed until it is resolved.