Reader question: When must I repay amounts withheld for defect remediation or at the end of the contract in addition to a rent reduction?
Because of a defect, you withheld an additional amount in your German flat alongside a legally reviewed rent reduction. Now the repair is complete or the tenancy ends. The two amounts must be treated differently. A provisional withholding to obtain defect remediation is not a final further discount.
Break down the previous payment status into two items
Set out for each affected month the agreed rent, the amount actually paid, the justified reduction and the additionally withheld sum separately. A blanket account note “paid less because of defect” leaves the later repayment open.
The BGH distinguishes the statutory reduction from a possibly additional right to withhold performance under §320 BGB. The latter is intended to exert temporary pressure to achieve the landlord’s obligation. [BGH1914] The article does not confirm that your original withholding was justified in cause or amount. That preliminary question must be clarified in the actual case.
Do not use an unlimited ongoing multiplier calculation
§320 paragraph 2 limits the withholding of performance when the counter-performance has been partly rendered according to the circumstances and good faith. [BGB320] In the default judgment VIII ZR 19/14 of 17 June 2015 the BGH rejected a schematic, practically unlimited temporal assessment based on a multiple of the reduction amount. The decisive factor is the overall circumstances. [BGH1914]
An initially reviewed approach must therefore not be carried forward unexamined over any number of months. Importance of the defect, course of events, total amount already withheld and the parties’ conduct belong again in the assessment. A generally permitted double, triple or quadruple rate is not recommended here.
Recognise in time the disappearance of the means of pressure
According to the explained principles, the right to withhold ends on remedying the defect and also on termination of the tenancy. Amounts initially lawfully withheld become generally due immediately. The judgment also addresses limits where the means of pressure no longer fulfils its purpose. [BGH1914]
Therefore note when which works were actually completed and whether the defect is remedied or still disputed. A mere tradesman’s invoice does not prove every complete remediation. Conversely, a remedied defect will not be treated as continuing merely because another billing issue is still open.
Fictitious calculation example without recommendation on withholding amount
In the legally already clarified, invented example 50 euros reduction and additionally 100 euros provisional withholding were treated separately for each of three months. The provisionally withheld total is 300 euros. The 150 euros reduction amount is a different item.
After confirmed defect remediation the due date of the 300 euros is examined and implemented accordingly. Not every previously unpaid sum is automatically assigned to the same category. The example expressly assumes the entitlement and amount and does not suggest amounts for a real defect.
Conclude the payment change in a comprehensible way
Have the current due and payment status clarified immediately and secure an actual payment made. If a due amount cannot be provided, the necessary coordination is its own task; a private later intention to pay does not extend the right to withhold performance.
If another claim remains, for example a separate reimbursement claim, it is examined on its own basis. It must not quietly take the place of a means of pressure that has lapsed. This way permanent effect of a reduction and only provisional withholding remain understandable in the final statement.