The term “method of execution” in clauses concerning cosmetic repairs is too vague. As a result, the entire clause becomes permissible – also in commercial tenancy law, as a ruling by the Brandenburg Higher Regional Court shows.
Even with commercially used spaces, there is often trouble related to cosmetic repairs. It is not only about who must carry them out but also how they should be performed. If a lease agreement contains a clause stating that the previous method of execution can only be deviated from with the landlord’s consent, the term method of execution is too indefinite and renders the entire clause invalid. This applies not only to private spaces but also in commercial tenancy law, according to the business law firm MTR Legal Rechtsanwälte, which also advises its national and international clientele in real estate law.
The proceedings before the Brandenburg Higher Regional Court involved a commercial lease agreement. The contract included a clause stating that the tenant may only deviate from the previous method of execution in cosmetic repairs with the landlord’s consent.
The tenant successfully opposed this. Although there is currently only a supreme court ruling regarding such a contract clause in residential lease agreements, the Federal Court of Justice clarified that a such standardized clause, according to which the tenant may only deviate from the previous method of execution with the landlord’s consent, violates the clarity requirement under § 305c para. 2 BGB. This is because the term method of execution is not clearly defined and can relate to the basic equipment, the specific arrangement, or both. This also applies if consent is only required for significant deviations.
This jurisprudence of the Federal Court of Justice can be applied to commercial lease agreements, decided the Brandenburg Higher Regional Court with the ruling of December 6, 2022 (Case No.: 3 U 132/21). The commercial tenant is even more dependent than a private tenant of an apartment on being able to design the spaces according to their needs. The design of the commercial spaces is often part of the business concept, said the Higher Regional Court, and declared the clause inadmissible.
In real estate law, experienced attorneys at MTR Legal provide advice on matters of commercial tenancy law.
