Maintenance refers to measures that are necessary to maintain the contractual Home Maintenance condition (= maintenance). Repair is the elimination of a condition contrary to the contract (= repair).
The landlord must leave the rented item to the tenant in a condition suitable for contractual use and maintain it in this condition during the rental period. This main obligation of the landlord is a long-term obligation directed towards the future, which is not exhausted in the transfer of the leased property, but also consists in maintaining the leased object in a usable condition during the entire rental period. The landlord must also fulfil this obligation if the tenant does not live in the apartment himself and is therefore not affected by the defect. In this respect, a rent reduction may also be justified due to the defect, regardless of whether the transfer of the apartment to the third party was permissible.
According to §§ 535, 538 BGB, the costs of maintenance and repair are to be borne by the landlord.
According to the case law of the BGH, his contractual permanent obligation cannot conceptually become statute-barred during the existence of the tenancy, since it arises during this period, as it were, constantly anew. The landlord can therefore not object to claims of the tenant for the removal of defects that have occurred during the rental period, e.g. repair of leaking windows, the condition has existed for a long time and the claims of the tenant would therefore be time-barred.
The legal situation is different if the defect already existed at the time of conclusion of the rental agreement and the tenant recognized the defect or did not recognize it only as a result of gross negligence. Then the tenant is not entitled to any rights to rent reduction and damages.
The liability incumbent on the lessee according to §§ 276, 278, 823, 831 BGB for culpably caused damage to the leased property is not affected by this.1 Objects and equipment of the lessee
There is no maintenance obligation on the part of the landlord for objects and equipment that have been brought into the rented premises by the tenant himself. The burden of proof that the rented premises have been fitted by the landlord with certain equipment (e.g. gas stoves) for which the landlord is obliged to maintain lies with the tenant, i.e. in case of doubt, the tenant must prove the landlord’s obligation to maintain certain items in the rented premises. Document the equipment of the apartment
When handing over the rented rooms, the equipment of the rented rooms should therefore also be documented in a handover protocol.
The same applies to objects and fixtures (e.g. fitted kitchens, sanitary equipment, floors) which the tenant has acquired from his predecessor or which were provided to him by him free of charge. If, on the other hand, the new tenant has not taken over the facilities brought into the rented premises by the previous tenant (e.g. floor covering, lightweight partition walls) by way of a redemption agreement, it depends on the interpretation of the lease concluded with the new tenant whether the facilities have been co-let as components of the leased property and whether the landlord’s obligation to grant use thus also extends to these facilities. In the case of fixtures firmly connected to the leased property, in the absence of a contrary agreement, it will be possible to assume in case of doubt that the landlord is obliged to grant use.
The same applies if the rental predecessor has merely left the objects or fixtures behind in the rented premises after moving out. Even then, ownership has not passed to the new tenant, but to the landlord. As a result, these objects and fixtures – in the absence of any other agreement – are deemed to have been provided by the lessor and thus deemed to be co-let. Thus, the statutory maintenance obligation of the landlord also extends to the objects and fixtures left behind by the previous tenant.
A form clause of the landlord, according to which furniture parts originating from the previous tenant (e.g. stove, refrigerator, cupboards, floor coverings) become the property of the tenant, is surprising and ineffective due to unreasonable disadvantage of the tenant; especially if the tenant had no contact with the previous tenant. Therefore, this clause cannot release the landlord from his statutory maintenance obligations.
If the parties to the rental agreement agree that the tenant is entitled to outsource the fitted kitchen – which is also rented out for a monthly amount shown in the total rent – and to install his own fitted kitchen, the landlord is released from his obligation to provide and replace, but not the tenant from his rent payment…