Meaning and Scope of the “Roof and Shell” Clause in Commercial Lease Agreements
The allocation of maintenance and repair obligations in commercial lease agreements is regularly the subject of complex disputes between landlords and tenants. One of the central issues concerns the interpretation of so-called “roof and shell” clauses, which require the tenant to assume certain preservation and repair tasks. The recent decision of the Higher Regional Court of Frankfurt am Main (OLG Frankfurt, judgment dated 18.09.2023 – 14 U 103/20) prompts an in-depth examination of the scope and effectiveness of such a provision, particularly with regard to damages to the interior plaster in leased commercial properties.
Systematics of Maintenance Obligations in Tenancy Law
The origin of commercial risks and the congruence of contractual provisions and default law are often subjects of contractual negotiations in commercial lease law. Originally, according to § 535 para. 1 sentence 2 BGB, the landlord is obliged to maintain the leased property in an agreed condition. This statutory obligation can partially be transferred to the tenant by individually negotiated agreements, such as a “roof and shell” clause—provided that this clause withstands content control.
Content and Wording of the “Roof and Shell” Clause
A “roof and shell” clause typically obliges the tenant to undertake the maintenance and repair especially of the roof and facade as well as other central building components. The formulation and semantic scope of this clause crucially determine which specific damages—such as to the interior plaster—are covered by the duty transfer or remain the landlord’s responsibility.
The OLG Frankfurt Decision: Interior Plaster Damages as Tenant’s Duty
In the case decided, the OLG Frankfurt had to assess whether the tenant is liable for remedial measures regarding damages to the interior plaster of the leased property. The parties of the commercial lease contract had agreed on a “roof and shell” clause and disputed its scope in relation to occurred plaster damages.
Presentation of Facts
According to the undisputed facts, significant damages to the interior plaster of the leased premises occurred during the tenancy. The tenant refused to remedy these damages, arguing that such damages remained within the landlord’s responsibility.
Reasoning and Legal Classification
The OLG Frankfurt affirmed the tenant’s obligation to repair the damages. According to the court’s view, interior plaster damages that do not stem from defects in the structural substantive part “roof and shell,” such as the supporting structure or the exterior facade, are to be repaired by the tenant if the contractual clause imposes a maintenance and repair obligation “beyond roof and shell.” In the case at hand, the lease contract had contractually transferred the maintenance and repair duties comprehensively to the tenant. Therefore, the interior plaster works do not constitute an exception to this contractual risk allocation in favor of the tenant.
The court based its decision primarily on the clear wording of the contract and the systematics of the maintenance burden distribution in commercial lease law, according to which a contractual shift beyond the statutory framework is generally permissible if formulated sufficiently clearly. No further interpretation in line with the parties’ intent or supplementary contract interpretation was required.
Contrary Approaches and Delimitation Issues
The ruling illustrates that a blanket assignment of maintenance burdens to the tenant can significantly expand their involvement in the preservation and care of the leased property beyond the clause’s title. However, the legal doctrinal discussion continues to differentiate between measures to preserve the structural integrity of the building (roof, shell, load-bearing components, etc.) and those concerning the interior fittings (plaster, interior doors, painting work). The classification of respective damages and maintenance measures always requires a case-by-case assessment and a precise analysis of the relevant contractual provisions.
Consequences for the Drafting and Interpretation of Commercial Lease Agreements
The assessment of the OLG Frankfurt shows that contract drafting in commercial lease law requires a careful and differentiated formulation of the assumption of maintenance and repair obligations. General or abbreviated clauses can lead to extensive obligations for the tenant if their scope is only concretized by courts in disputes. For contractual practice, a clear regulation is therefore recommended, which comprehensibly defines the type, scope, frequency, and limits of maintenance duties while reflecting the interests of both parties.
In ongoing proceedings and legal disputes, it is essential to consider each individual case taking into account the specific contract text as well as the actual circumstances. The decision of the Higher Regional Court Frankfurt is final and concerns the particular facts decided there (see Higher Regional Court Frankfurt am Main, judgment of 18.09.2023 – 14 U 103/20, accessible at https://urteile.news/OLG-Frankfurt-am-Main_14-U-10320_Mieter-muss-wegen-Dach-und-Fach-Klausel-Innenputzschaeden-auf-eigene-Kosten-beseitigen~N35493).
Individual legal assessment recommended
Due to the complexity and economic significance of contractual clauses concerning maintenance and repair obligations, a detailed legal review by a consultant experienced in real estate law is advisable. Companies, investors and wealthy private individuals who face similar issues can find further information as well as individual support in the area of Real Estate Law Advice at MTR Legal Attorneys.
