After the sale of a rented apartment in Germany you want to finalise the documents. The deposit was handled in the purchase settlement, and you are no longer the current owner. Nevertheless, the deposit file is not merely a remnant of an old tenancy. § 566a BGB contains, alongside the entrant status of the purchaser, expressly a possible further restitution obligation of the previous landlord.
Understand the statutory starting point
Under § 566a BGB the purchaser steps into the rights and obligations arising from the security provided. If the tenant cannot obtain the security from the purchaser at the end of the tenancy, the landlord remains obliged to make restitution. [BGB-566a] The actual prerequisites and possible further questions must be examined in each individual case. An internal accounting by the contracting parties should therefore not be regarded as the complete resolution of any later questions without advice.
Keep the actual security reconstructible
Our editorial recommendation is a targeted closing file. It associates the tenancy agreement, the agreed scope of security, the security provided and the specific treatment in the purchase settlement with one another. Record the form of the security; a cash deposit is not the same in the description as a guarantee or a pledged credit balance.
Indicate which status was actually confirmed. An amount in the old contract is not automatically the proven final balance. Open differences require a specific verification note with documentation and date. This article does not calculate interest or permissible deductions.
Prepare for a later alleged recall
Years after the sale a former tenant asks the seller about the deposit. The seller initially finds only the purchase receipt and recalls that “everything was offset”. From this she cannot reliably determine which security was dealt with and to what extent.
An orderly closing file would instead have shown her the confirmed proof of balance, the corresponding settlement rule and its execution record. She could provide these specific documents for advice without recognising or rejecting a claim from memory.
Do not mix sales proceeds and deposit handling
In a separate working overview freely available proceeds and the handling of the third party security should remain distinguishable. The appropriate contractual arrangement between the contracting parties belongs in individual advice. This article recommends neither a blanket retention nor a clause for an allegedly safe discharge from liability.
Ask at closing explicitly which documents you will need for later enquiries and which further obligations may exist. Data-protection-compliant retention, specific purpose and duration are also appropriate to clarify; an unlimited collection of all tenant data is not recommended here.
Have the facts examined in the event of a later claim
If a claim is made, collect its actual content and the available settlement documents. Have the claim, parties involved and the significance of previous payments concretely assessed. Do not rely solely on the fact that the building was sold long ago.
The closing file does not guarantee a dispute-free course. However, it prevents you from having to work with nothing more than a recollection of the purchase price at the time in the face of a later matter expressly provided for by statute.