Conservation measures (maintenance and repair)

My landlord wants to carry out repair measures. Is there a difference to maintenance?

Maintenance and repair are measures that serve to preserve the dwelling or building. The law thereHome Maintenance fore speaks of conservation measures. A maintenance measure is understood to mean measures that eliminate existing damage (repair) and prevent possible preventive measures (maintenance). The distinction between the two terms is fluid. You must tolerate both. The landlord must announce conservation measures. Only if these are associated with only insignificant effects for you, the obligation to announce does not apply. The costs for maintenance measures must be borne by the landlord. However, it is possible to impose costs for maintenance measures on tenants by means of a rental agreement. Rental agreements often stipulate that tenants have to bear the costs of minor repairs.

What are small repairs and do I have to cover the costs in full?The term comes from the cost tenancy law (applies to price-controlled, publicly subsidised apartments, but in this case is also applied to price-free apartments) and is defined in § 28 paragraph 3 of the Second Calculation Ordinance. After that, minor repairs only include repairing minor damage.In order to be effective, clauses on the assumption of costs for small repairs must contain a maximum amount and an annual ceiling for each repair. In addition, they must be limited to those parts of the rented apartment that are exposed to direct and frequent access by tenants. These include installation items, for example for electricity, water and gas, heating and cooking equipment, window and door locks and the locking devices of shutters. This does not include objects with which you hardly come into contact, such as lighting fixtures, the filling valve of the toilet cistern or a heating boiler.According to current case law, the maximum amount for individual repairs is up to 110 euros. If the costs of the small repair exceed this amount, the landlord must bear the entire repair costs. The courts recognize 6% to 8% of the annual rent as the maximum annual limit, whereby one month’s rent should not be exceeded under any circumstances. Whether the annual net cold rent or the annual gross cold rent applies as a reference basis has not yet been clearly decided in case law.You should also know that so-called preemption clauses are ineffective. These are form clauses that oblige tenants to carry out or commission repairs themselves.

Can I be charged with a maintenance clause in addition to a clause for minor repairs?If you have agreed in your lease agreement to cover maintenance costs, such as the maintenance of gas heating, hot water appliances or smoke detectors, the clause does not have to contain a cost limit. Maintenance costs are part of the operating costs and can therefore be allocated without an upper cost limit if the apportionment is agreed in the rental agreement (BGH, AZ: VIII ZR 119/12). However, maintenance does not include repairs, even if maintenance contracts include repair work and these are carried out on the occasion of maintenance. The effectiveness of precautionary clauses (see above) for maintenance work is controversial.

How can I tell if the landlord wants to carry out maintenance or modernization measures? And what costs may the landlord claim?The term modernization measures is legally defined in § 555 b BGB and includes structural changes of the landlord,

After carrying out modernization measures, the landlord can increase the rent. The costs for maintenance measures may not be passed on to the tenants. A classic example is the replacement of double box windows with modern insulating glass windows. This is both a conservation and a modernisation measure. It follows that the landlord may apportion the costs of the modernization, but must deduct the saved maintenance costs from the total costs, i.e. only the pure modernization costs may be passed on to the rent.Currently, the landlord can increase the annual rent by 11% of the modernization costs incurred. A change in the law is currently being sought. The draft bill for the further amendment of tenancy regulations (2nd MietNovG) of the Federal Ministry of Justice and Consumer Protection provides for a restriction of the allocation of modernization costs to the rent. A reduction of the permissible percentage from 11% to 8% and the introduction of a capping limit for the rent increase after modernization to a maximum of 3 euros/sqm within 8 years are currently under discussion. Whether these proposals will be implemented is not yet foreseeable, because they meet with fierce resistance from the landlord lobby.

What is a modernizing repair?In addition to the mere restoration of the proper condition of the building or apartment, a modernization effect is added by a modernizing repair. This modernization effect is deliberately wanted by the landlord and is not forced by the fact that a repair is not possible. An essential distinguishing criterion of modernizing repair from pure modernization is therefore the reason for repair. In addition to the repair, a modernization effect must occur, which usually aims at technical improvement, increasing the value of the dwelling or saving energy. Examples: The landlord replaces a toilet bowl in need of repair with a wall-hung toilet with a water-saving cistern embedded in the wall. Or the landlord has the exterior façade of the building renovated and provided with thermal insulation. If the bathroom equipment was in need of repair and the exterior façade was in need of renovation due to its age, the landlord must have the costs of the repair due offset as costs for maintenance measures. He may only pass on the costs of modernisation.     Similarly, the work carried out on the occasion of a modernisation to maintain or restore the contractual condition is not modernisation measures, but purely conservation measures. Have this checked by our counselling centres.

Do I have to tolerate the implementation of conservation measures?You must tolerate measures that are necessary for the maintenance or repair of the leased property (§ 555 a paragraph 1 BGB). Last year, the Federal Court of Justice ruled that the refusal of tenants to tolerate repair measures and to grant the craftsmen commissioned by the landlord the necessary access to the apartment can justify ordinary and immediate termination (judgment of 15 April 2015, AZ: VIII ZR 281/13, Mieter-Echo No. 377/ October 2015). To be on the safe side, you should visit one of our counselling centres immediately after announcing the implementation of conservation measures in order to have your case examined individually.

Does the landlord have to announce the implementation of the intended conservation measures?In principle, maintenance measures must be announced to the tenants in good time (§ 555 a paragraph 2 BGB). As a rule, a period of 2 weeks should be sufficient. A special form for the announcement is not required, it can also be made orally.If the start of the measures is delayed not insignificantly, the landlord must repeat the announcement.But: Maintenance measures that are only associated with an insignificant effect on the leased property or whose immediate implementation – as in case of imminent danger – is absolutely necessary, the landlord does not have to announce. Danger in delay exists, for example, in the event of a power failure, heating failure, burst pipe or water or gas leak.