Both tenants and landlords must be careful when handing over the apartment. Because if the tenant takes over a damaged apartment and does not record the damage in advance, he can easily be held responsible for the damage when the apartment is returned. Conversely, if the landlord does not precisely record the condition of the apartment when the tenant moves out, it becomes difficult to pursue claims against the tenant who moved out. A handover protocol saves both parties a lot of trouble.
Who must be present when the apartment is handed over?
Both tenants and landlords should be present when the apartment is handed over. The landlord must ensure that the tenant can move into the apartment on time for the start of the rental agreement. If the landlord does not appear on the handover date without cancellation, all additional costs on the part of the tenant (additional costs when moving) must be paid. The tenant must ensure that the landlord receives his property back by the last day of the rental period at the latest (Section 546, Paragraph 1 BGB). If this day falls on a Sunday or public holiday, the handover can also take place on the following working day. If the tenant misses the handover date so that the landlord does not get the apartment back in time, he can claim damages from the tenant - in the amount of the agreed or local rent (§ 546a BGB).
Usually the landlord and tenant are personally present when the apartment is handed over. But there is another way: authorized third parties can represent the tenant during the handover. Written powers of attorney should be used for this.
The landlord can also entrust the handover to someone else, for example his property manager or broker. He has to trust this person completely, as the landlord usually has to answer for his mistakes. Because the tenant's contractual partner is the landlord, not his representative. However, the landlord can later take recourse against his representative. This means that he can hold him responsible for his mistake and demand compensation if he has breached his obligations.
In addition, it can be helpful to ask a neutral person to hand over the apartment, who will check the apartment for damage and co-sign the apartment handover protocol as a witness.
In what condition does the apartment have to be?
The tenant must always hand over the apartment swept - not only if it says so in the rental agreement. A swept-clean handover can also be derived from the legal obligation to return the goods in a proper condition (Section 546 (1) BGB, BGH, Az .: VIII ARZ 1/84). In order for the apartment to be "swept clean", coarse soiling must be removed. According to established case law, this includes:
- Coarse dirt must be removed from carpets.
- Rooms with tiles, parquet or laminate must be swept properly and, if necessary, cleaned with a damp cloth.
- Cobwebs in the apartment and rented basement rooms must be removed.
- Windows only need to be cleaned if they are heavily soiled.
- Limescale deposits and smear layers - for example in the kitchen or bathroom - must be removed.
- Leftover food must be removed from the kitchen.
- No groceries are allowed in the rented refrigerator.
But: If the rental agreement states that the apartment is to be handed over “carefully cleaned” or in a “clean condition”, then this agreement is also effective and the tenant has to clean it more intensively.
In the case of cosmetic repairs such as painting and wallpapering, it depends: The apartment must be handed over in a new, renovated condition at the start of the contract and the renovation clause in the rental agreement must be valid so that the tenant is obliged to renovate.
What should you watch out for when handing over the apartment?
Apart from the fact that the apartment has to be in the condition mentioned above, all parties should pay attention to the following additional things:
- Read and note meter readings on water meters, gas and electricity meters,
- Check the completeness of the keys
- Examine the floors for damage
- Check the closing mechanisms of windows and doors
- Check the condition of taps and toilets
- Test rented electrical equipment
- Check whether the wash basin, toilet bowl, bathtub, sink and drains are permanently installed
- Check that the heating is working
- Check the attic and basement for water damage
If damage is discovered or the apartment does not correspond to the contractually agreed or legally prescribed condition, this must be recorded in the apartment handover protocol.
What belongs in the apartment handover protocol?
Documenting the damage to an apartment makes sense, of course. For example, tenants can only reduce the rent under special conditions due to defects that are recorded in the handover protocol. In addition, there are no legal requirements as to how an apartment handover protocol should look like. The following content should definitely be included:
- Name and address of the tenant and landlord and, if applicable, of witnesses - the real estate agent can also serve as a witness here
- Address of the apartment
- Date of handover, moving in or moving out and the last renovation
- Gas, water and electricity meter readings
- Contents of the heating oil tank, if available
- Type and number of keys handed over, for example front door and apartment keys, as well as mailbox and cellar keys
- All existing defects and damages - cracked tiles, scratches in the parquet, chipped paint on the door, missing skirting boards, etc.
- If the rooms are in perfect condition and are handed over swept clean, this should also be mentioned
- Arrangements for pending repairs
It is best to name all rooms individually in the handover protocol and to describe existing defects as precisely as possible. The more precise the description, the more evidential value the document has. If the tenant and landlord do not agree on damage, they should still enter it in the handover protocol together with their differing opinions.
How should the landlord act after the tenant has moved out if he finds damage?
If the apartment is damaged, landlords must promptly request their ex-tenant to remedy the damage, as their claims for compensation generally become time-barred after six months from the return of the apartment (Section 548 of the German Civil Code). When making claims for compensation, the landlord should first send the tenant a request to rectify the damage. This must include a deadline by which this is to be done and the threat that the damage will otherwise be removed at the tenant's expense. After the deadline has expired, a check is made to see whether the tenant has repaired the damage. If the damage has not been repaired, the landlord should hire a company to repair it and charge the costs to the tenant. If a rent deposit has been paid, the landlord can use it to settle the costs. If the tenant rejects the claim for damage repair, a lawsuit should be filed or an order to pay should be requested. As soon as the tenant and the landlord negotiate about the damage repair, the statute of limitations is suspended, unless the tenant immediately and clearly rejects the landlord's claim. During the suspension, the limitation period is effectively put on hold. However, if the tenant refuses in the course of negotiations, the landlord must take action. He can sue the tenant or claim the damages through a court order.
Missed damage - what to do now?
When the handover protocol is signed by the tenant and the landlord, it is considered to be correct and completely accepted under certain conditions. If easily recognizable damage is disregarded, it is hardly possible to complain afterwards. After moving in, tenants can only report existing damage to the landlord under more difficult conditions. When moving out, he can theoretically be responsible for all scratches and other damages that were present when moving in but did not appear in the document. If, on the other hand, the landlord ignores the damage when moving out and it is not noted in the apartment acceptance protocol, he can usually no longer successfully claim damages. Exceptions are only possible if the damage is not readily apparent.
How should tenants and landlords proceed in the case of hidden defects?
Action is required in the case of hidden defects. If the tenant discovers the defect after handing over the apartment, he should notify the landlord immediately, preferably in writing. Then both parties can record the damage in the minutes afterwards. If the landlord refuses, the only remedy in the worst case is to sue the landlord for repair. The same applies if the landlord discovers hidden damage after the tenant has moved out. If the tenant refuses to record this damage in the minutes, the landlord may have to take legal action in the worst case.
When may the landlord retain the rent deposit?
The deposit is security for the landlord and he can offset it against claims still outstanding against the tenant after the end of the tenancy, for example due to damage or rent arrears. To do this, he must disclose his claims to the tenant, be able to justify them in a comprehensible manner and prove them with invoices. According to current case law, there is no specific deadline within which a rent deposit must be settled. Since the deposit secures all of the landlord's claims, even the last statement of operating costs is relevant to the deposit. If the tenant does not agree with the amount of the returned deposit, the only option is to file a lawsuit.