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Created on Sunday, 17 October 2010 18:17

Last Updated on Friday, 28 December 2012 18:58

Rigid Terms for Decorative Repairs for Commercial Rents

"Schönheitsreparaturen (beauty repairs)", as the Germans name decorative repairs are frequently a fit between landlord and tenant. 99.9% of all precedences are between private tenants and their landlords. This one here is now between a commercial tenant and his landlord. What was heard in the Federal Court of Justice's case XII ZR 84/06 (judgment October 8, 2008)? The legitimacy of rigid terms for "beauty repairs" in the space. As businesses are not so protected as the private tenant, what do think the court decided?

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The tenants of this case rented a shop space from 1991 to 2006. The contract stipulated that the tenant is required to repaint the space as follows:

• The kitchen, bathroom, toilets are to redone every three years.
• All other rooms were to be remade every five years.

The tenant was reluctant to do the painting and the landlord insisted to have it done. As the quarrel went on, the landlord went to court to have the court acknowledge with binding force that the tenants were not responsible for the decorative painting. They lost the case.

It is no problem whatsoever that the statutory duty of the landlord for decorative painting is conveyed on to the tenant and such even per standard contract. When such is done in a "form contract", the rules and regulations for STC are to be tested extra. §§305 et. seq. BGB determine following the rules of good faith (§242 BGB) no contractual partner may be unreasonably disadvantaged. Such unreasonable disadvantage will be generally assumed when the rules in §307 II no. 1 BGB have not been considered.

Such is here the case, when in a form contract the tenant is supposed to redecorate the apartment in certain strict periods even when they do not need repainting. Since the landlord steals the tenant of the defense that the walls are still in good shape - in other words there is no objective need for a redecoration. Therefore, such strict periods, i.e. "starre Fristen" are null and void also for commercial rents.

Generally, they are not so essential that also the contract looses its validity. The legal consequence is that the landlord has to take care of the Schönheitsreparaturen (§535BGB).