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Created on Saturday, 21 August 2010 13:32

Last Updated on Friday, 28 December 2012 18:58

Demanding to Have Beauty Repairs Done

Can a standard contract really obligate you to have somebody else carry out minor repairs and renovations at the end of a contract for an apartment? The verdict of the BGH of June 09, 2010 (re VIII ZR 294/09) gave the response.

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The tenants lived in apartment in discussion from 1962 until 2007. The standard contract read in §8 no. 5:

"5. Der Mieter ist verpflichtet, die Schönheitsreparaturen ... in der Wohnung ausführen zu lassen..., … (The tenant is obligated to allow someone else to carry out beauty repairs and renovations in the apartment).

The tenants refused to pay € 7,036.35 in damages for unperformed repairs. Therefore the landlord sought legal recourse. The lower courts did not grant the applications of the landlord, and the highest civil court, the Federal Court of Justice also refused to follow the landlord’s arguments.

The BGH held that this contractual stipulation comes under the testing of an STC by its contents because standard or form contracts are like STCs (§305 I 2 BGB). The used stipulation does not pass the reasonability test because the landlord requires more that is required by law. It cannot be that a tenant is deprived of right to perform the beauty repairs himself and/ or with the help of friends. The contract can only be interpreted in such manner that it requires the tenant to hire a professional company. This goes beyond what can be permissibly shifted over to the tenant (§307 BGB) – it is unreasonably disadvantageous.