The Federal Court of Justice recently clarified the obligations to carry out decorative repairs in tenancy agreements (BGH; VIII ZB 43/23). In essence, the issue is that the responsibility for decorative repairs can be effectively transferred from the landlord to the tenant by means of standard contract clauses. However, this presupposes that the apartment was handed over in a renovated condition at the start of the tenancy. If this is not the case, the burden of proof for the condition of the apartment lies with the tenant.
In the present case, a tenant had filed a lawsuit who was obliged to carry out cosmetic repairs according to her tenancy agreement. She assumed that the corresponding clause was invalid. The reason for this assumption was that the landlord had already left the apartment to her unrenovated. According to the BGH, the clause is indeed invalid for tenants if they rent an unrenovated apartment without receiving compensation. However, the tenant was unable to prove this.
The BGH also emphasizes that "the tenant should be obliged to provide evidence of the extent of the cosmetic repairs carried out during the tenant's period of use". In the case described, the tenant must therefore carry out the cosmetic repairs.source and further information: juris.bundesgerichtshof.de/AZ: VIII ZB 43/23
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