In future, landlords will be able to retain the deposit for longer than six months in the event of damage. This is the case if damage has occurred to the rented property and the landlord could have asserted the claim for damages before the expiry of the so-called "six-month limitation period". The landlord must also be able to prove the damage. This was recently decided by the Federal Court of Justice (III ZR 184/23).
However, the BGH presupposes that the claims are similar in order to enable offsetting. This means, for example, that both claims must be valued in monetary terms. The background to this is that landlords can either demand money back or give the tenant the opportunity to restore the original condition, so-called neutral restitution.
In this case, a landlady and her landlord had a dispute because he withheld the deposit of EUR 780 due to damage to the apartment. However, he only asserted his claim for damages more than six months later. The tenant took legal action against this and the case ended up first at the local and regional courts and then at the Federal Supreme Court. The latter in turn referred the case back to the regional court. The reason: it is not clear whether claims for damages exist or not.
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