Tenant’s Reimbursment when Final Renovation Clause is Invalid

Who is entitled to the renovation costs when after renovation the tenant found out that he was not obliged to renovate the apartment before turning it back to the landlord? The Federal Court of Justice made a point on May 27, 2009 (re VIII ZR 302/07).

The tenants had lived in their apartment for some time. After they cancelled the contract and on the assumption of being obliged to renovate at the end of tenancy, they did so cleaning up the place. Afterwards, they found out that this obligation did not legally exist. They then contacted their former landlord to be reimbursed € 1,620 – and all he did was shrug his shoulders.

The BGH held that the tenants were entitled to be reimbursed on the grounds of unjust enrichment (“ungerechtfertigte Bereicherung”), §§812 I, 818 II BGB, because they renovated with having the requirement to do so. The value of this enrichment is measured by the reasonable costs for an actually renovation performed by professionals, or as an aid the usual costs for such renovation. However, it also has to be considered that it is customary that private tenants do the renovation themselves or with the help of family and friends. In such cases, the value is to be estimated usually in relation to the sacrificed free time, the costs for paint and other material, a remuneration for the friends and family members. This amount can be estimated by the court (§287 ZPO).