Commercial Maintenance Obligations in Bavaria, Germany

In commercial leasing, governed primarily by the German Civil Code (BGB) since its commencement on 1 January 1900, Bavarian landlords enjoy freedom of contract that allows them to shift many maintenance obligations to the tenant. However, this freedom is strictly controlled by the law on General Terms and Conditions (AGB-Recht) under § 307 BGB, which protects tenants from unreasonable disadvantage in standard-form contracts.

1. The Statutory Default (§ 535 BGB)

Under § 535 (1) BGB, the landlord is legally obligated to maintain the property in a condition suitable for the contractually agreed use. While commercial law allows for the transfer of these duties, standard-form contracts (AGB) are strictly monitored. Without a valid contractual modification, the landlord bears full responsibility for the roof, structure, and all interior systems.

2. Levels of Maintenance Transfer

A) Interior Maintenance and Minor Repairs

The tenant often handles cosmetic repairs and minor fixes within the leased premises (faucets, switches, lighting).

To be valid in an AGB lease, a minor repair (Kleinreparaturen) clause must:

• Be limited to parts of the premises subject to the tenant's direct and frequent access.
• Specify a maximum amount per individual repair (e.g., €150-€250).
• Specify an annual aggregate cap (e.g., 6-10% of the annual net rent).

B) Full Interior Maintenance

The tenant may assume responsibility for maintenance within the leased space, including building systems components. However, shifting the maintenance of technical systems (HVAC, elevators) via AGB is only valid if the tenant's financial contribution is subject to a reasonable cap (typically 5-10% of the annual net rent). A clause without such a cap is void, reverting the full cost to the landlord.

C) Triple-Net Lease (Dach und Fach)

The most extensive transfer, typical for single-tenant industrial properties and warehouses in Bavaria:

• The tenant takes on all maintenance, including structural elements (roof, facade, foundation, central heating).
• Critical limitation: The transfer of structural maintenance ("Dach und Fach") to the tenant is void in standard-form (AGB) leases. It can only be achieved through a truly individually negotiated agreement (Individualvereinbarung) with appropriate compensation, such as significantly lower rent.

3. Commercial Rent Reduction Rights

In commercial AGB, the right to reduce rent (§ 536 BGB) cannot be waived for defects.

• A clause may only require the tenant to "pay under reservation" and seek recovery later.
• Rent reduction rights can only be restricted to claims that are "undisputed or legally established" (unbestritten oder rechtskräftig festgestellt).
• Clauses attempting to restrict reduction only to cases of "gross negligence" are void.
• Disputes may be handled in the Amtsgericht (District Court) for disputes up to €5,000, or the Landgericht (Regional Court) for larger commercial claims.

4. Operating Cost Pass-Through

Commercial leases may pass through various operating costs, but there are strict limits on maintenance-related items:

• Management fees (Verwaltungskosten) can be passed through in commercial leases.
• Full building insurance premiums are generally permissible.
• Maintenance Reserves (Instandhaltungsrücklagen) are generally not apportionable in AGB as they represent the landlord's core investment risk.
• Property tax (Grundsteuer) is standard.

While the lease defines the scope and no direct reference to the Betriebskostenverordnung (BetrKV) is required, the costs must be transparent and predictable.

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