Structural repair clauses in commercial tenancy agreements

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Maintenance and repair of commercial rental property

Structural repair clauses – known as “Dach- und Fachklauseln” in German – are a frequent source of frustration in commercial tenancy law. A lawyer specializing in real estate law can be your advocate should legal disputes arise.

Who is responsible for maintaining a rental property? This question, which is a common point of contention between tenants and landlords when it comes to residential tenancies, is also a hot-button issue in the context of commercial tenancy law, notes MTR Legal Rechtsanwälte, a commercial law firm whose practice includes real estate law.

Section 535 of the German Civil Code (BGB) provides us with a clear answer, assuming nothing to the contrary has been agreed in the tenancy agreement. The provision stipulates that the landlord is obligated to make the rental property available to the tenant in a condition suitable for use as defined in the agreement, and to maintain it in this condition for the duration of the rental period.

Maintenance clauses

But the situation often looks different in reality, with it not being uncommon for tenants to be required by clauses in the tenancy agreement to perform maintenance as well. In the case of residential tenancy agreements, this typically comes in the form of clauses that require the tenant to deal with minor and cosmetic repairs. In commercial tenancy agreements, on the other hand, a similar result is achieved by means of a “Dach- und Fachklausel”.

This type of clause is frequently drafted in a such a manner that the landlord is only responsible for carrying out structural repairs to the rental property, whereas the tenant is responsible for all other measures related to the external and internal maintenance and repair of the property. This means that the extent to which commercial tenants can be required to perform maintenance work is much greater than in the case of private tenants, with this being informed by the notion that commercial tenants are less in need of protection than private individuals.

Repairs to the roof, load-bearing parts of the building, and façade

Maintenance work is understood to mean measures that are necessary to ensure that the rental property can continue to be used as intended. Signs of wear and tear and any defects must be remedied. This may involve having to apply a fresh coat of paint, for example. Maintenance also covers necessary repair work such as repairing the roof.

There is currently no precise definition outlining which types of maintenance and repair work are encompassed by the term “Dach und Fach”, but the courts are increasingly operating on the assumption that this refers to the roof, the load-bearing parts of the building, as well as to the external façade, in which case any necessary work needs to be carried out by the landlord. The tenant, for their part, is responsible for all other measures, and it is possible to determine the extent of their responsibilities in the commercial tenancy agreement. The boundaries are often fluid, which regularly leads to legal disputes between tenants and landlords, meaning that it is a good idea to consult an attorney who practices real estate law.

Narrow confines of a standard-form tenancy agreement

It is important to note that more extensive provisions can be agreed between the parties in an individual tenancy agreement than in a standard-form tenancy agreement. According to Section 307 BGB, a contractual clause is unreasonable if it unreasonably disadvantages the contractual partner of the party invoking the clause. Accordingly, in a standard-form tenancy agreement, the maintenance and repair obligations would only be passed on to the tenant to the extent that they extend to damage that is attributable to the use of the rented property and which falls within the tenant’s sphere of risk.

MTR Legal Rechtsanwälte can advise on contractual clauses in commercial tenancy agreements, as well as on many other aspects of real estate law.

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