You found a new flat despite the tough housing market?
Have you already browsed Kleinanzeigen for the perfect furniture?
Then the big shock: your former landlord or landlady doesn't want to pay your deposit back and instead presents you with a deposit statement. This lists a variety of supposed claims.
Don't panic.
The rental deposit serves to secure the rightful claims of the landlord. However, it is not a free pass to pass on all renovation or maintenance costs to former tenants.
Looking at legislation and case law frequently shows that claims brought forward do not withstand judicial review.
1. Your entitlement to the return of the deposit
As a tenant, you are generally entitled to a refund of the deposit you paid, including any interest earned on it (see § 551 of the German Civil Code (BGB)).
The landlord is obliged to repay the security deposit after the termination of the tenancy agreement and the return of the flat, provided there are no justified counterclaims.
Briefly Only justified claims warrant a deduction from your deposit.
2. Good documentation is half the battle.
Document the condition of the flat carefully both when moving in and when moving out. Create your own photographic documentation.
Don't let yourself be pressured. Never sign a handover protocol that inaccurately reflects the actual condition of the flat or lists defects that do not exist.
3. When must the deposit be repaid?
Your claim for the return of the deposit will not be due immediately.
Neither on the day of moving out nor on the day of handing over the flat is there a claim to immediate repayment of the deposit.
The landlord is entitled to a reasonable period for examination and consideration, typically three to six months after the return of the flat. The repayment claim only becomes due after this period has expired.
Tip: If your landlord sends you a deposit statement before the inspection period expires, this usually indicates that the inspection is complete. If there are no valid counterclaims to be made, the repayment claim generally becomes due at this point.
4. Normal wear and tear is not damage
A flat is lived in, and it's okay for that to show.
According to § 538 of the German Civil Code (BGB), the landlord is generally responsible for wear and tear or deterioration of the rented property that arises from its intended use. The law follows the principle that tenants shall be permitted to use the accommodation in accordance with the contract. Consequently, the effects of normal use do not need to be rectified, as they are covered by the rent (Local Court of Chemnitz, judgment of 03.01.2024, file number 16 C 1527/22).
Minor scratches, some dowel holes, and normal signs of wear and tear on doors or age-related wear and tear are expressions of tenant's use in accordance with the tenancy agreement.
The situation is different with wilful damage. Broken doors, destroyed tiles, or damage caused deliberately can, of course, be subject to compensation.
5. Cosmetic repairs: Not every clause is effective or applicable
Many landlords try to enforce claims from so-called cosmetic repair clauses in the tenancy agreement.
However, such clauses warrant a second look.
Renovation clauses are often ineffective or do not apply because the property was handed over in an unrenovated condition at the start of the tenancy.
Tip: In literature and case law, the following examples, among others, have been identified as instances of an unrenovated condition of a dwelling:
The windows are not freshly painted and show flaking paint.;
age-related colour variations in the paints;
• incomplete wallpapering or painting of walls;
• Overpainting or localised hollow spots on freshly glued wallpaper;
• conspicuous nail and dowel holes, scratches on doors or other woodwork.
6. Loss of earnings
Some landlords also claim loss of rent.
You claim the flat was not immediately re-rentable due to defects caused by you, and are therefore demanding compensation for the allegedly lost rent.
It is true that when a flat is returned in a condition that is not in accordance with the contract, there can, in principle, be a claim for damages in the form of loss of rent for the period between the end of the contract and re-letting (cf. OLG Brandenburg, order of 03.02.2020, ref. 3 W 125/19 with further references).
For this, however, the landlord must demonstrate that a concrete loss of rent has actually arisen as a result of the condition of the flat (OLG Brandenburg, decision dated 03.02.2020, ref. 3 W 125/19; KG Berlin, decision dated 03.06.2010, ref. 12 U 164/09).
It must be regularly substantiated as to to whom, at what time, and under what conditions a subletting would have actually been possible in the case of the flat being in an orderly condition. A loss of rent cannot simply be assumed (Staudinger/Volker Emmerich (2014) BGB § 535, para. 125).
Rather, concrete facts are required which prove a sufficient probability of damage (BGH, order of 13 July 2010, Ref. VIII ZR 326/09). In practice, it is precisely this substantiated explanation of to whom, at what time and under what conditions a subletting would have been possible, that often fails.
Furthermore, a tight housing market can be a circumstance that supports the assumption that a flat entering the housing market could have been sublet in the short term (Federal Court of Justice, decision of 13.07.2010, ref. VIII ZR 326/09). Especially in conurbations, a mere reference to an alleged loss of rent is therefore usually not sufficient. Instead, the landlord must provide specific reasons why a prompt re-letting was nevertheless not possible in the individual case.
7. Heating and operating costs
If the alleged counterclaim relates to a potential additional charge from a utility bill, the landlord is entitled to a right of retention only to the extent that it is seriously likely that the payments made will not be sufficient to substantially cover the estimated costs.
Fundamentally, the landlord is already sufficiently secured by the advance payments made (cf. BGH, judgment of 18.01.2006, ref. no. VIII ZR 71/05; LG Berlin, judgment of 08.02.2005, ref. no. 64 S 466/04; Schmidt-Futterer/Blank Rn. 99 f.; Staudinger/V. Emmerich, 2021, Rn. 31).
8. Conclusion
The security deposit reconciliation is not a free pass for arbitrary deductions.
Landlords may only withhold amounts for which there is a valid legal basis.
Normal wear and tear or merely alleged damage do not justify withholding the deposit.
Anyone who receives a security deposit statement after moving out should not accept it without checking. Often, a glance at the law and current case law shows that claimed entitlements will not stand up to judicial review.
9. Social background
In Germany, millions of people are struggling with rising rents and displacement from their homes.
The creation of affordable housing is not solely an individual challenge, but a core problem for our society.
Only those who have an affordable one can participate equally in social life.
How we manage housing will determine whether our cities remain vibrant, mixed, and inclusive places in the future.
This post is for general information only and does not constitute legal advice. It cannot and is not intended to replace individual legal advice in specific cases. Every situation has particularities that may require a different legal assessment. To assess your personal situation and develop a solution tailored to your case, obtaining qualified legal advice is recommended.