Commercial Maintenance Obligations in Hesse

Maintenance in commercial leases across Hesse is a primary point of negotiation. Unlike residential laws, landlords can shift significant repair burdens to the tenant, making the initial contract review critical for long-term costs.

In commercial tenancy law in Hesse, maintenance and repair obligations can be extensively redistributed between the parties by contract. Unlike residential law, it is fully permissible to assign the tenant maintenance duties. This guide covers the common models and their legal boundaries.

Maintenance Models

1. Statutory Default Under

BGB § 535 (1) (2), the landlord is generally responsible for maintaining the property in contractually agreed condition. This covers:

• Building structure: Roof, facade, load-bearing walls
• Technical systems: Heating, plumbing, electrical (landlord-provided)
• Common areas: Stairwell, elevator, parking areas

In commercial tenancy law, this duty can be contractually transferred to the tenant to a much greater extent than in residential law.

2. Roof and Structure Clause (Dach und Fach) The most common allocation model:

Landlord Retains

• Roof and drainage
• Load-bearing structure (walls, foundation, columns)
• Facade and exterior components
• Supply lines up to the branch point

Tenant Assumes

• Interior installations (plumbing, electrical, HVAC within the premises)
• Windows, doors, roller shutters
• Floor coverings and ceiling panels
• Heating and air conditioning units within the premises
• Cosmetic repairs

3. Triple-Net-Lease (NNN) Prevalent for large-scale commercial properties, logistics, and retail in Hesse:

• The tenant bears nearly all costs for maintenance, repair, insurance, and taxes
• The landlord receives "net-stripped" rent
• Even roof and structure repairs can be transferred to the tenant
• The landlord typically retains only minimal structural obligations

Limits on Transfer Even in commercial law, there are boundaries:

• Full transfer of all maintenance and renewal obligations (including roof and structure) in standard-form contracts may be deemed an unfair disadvantage (BGB § 307)
• Individually negotiated clauses have significantly more latitude
• The landlord must ensure initial fitness for use at lease start

4. Operating Cost Pass-Through Commercial leases allow significantly broader cost recovery than residential:

5. Statutory Inspections Regardless of contractual allocation, certain statutory inspection duties fall on the building owner (landlord):

• Elevator inspection: Regular review by approved monitoring body (BetrSichV)
• Fire safety: Fire alarm systems, sprinklers, extinguishers
• Electrical inspection: Regular testing of electrical installations
• Drinking water testing: For large systems in commercial buildings (42. BImSchV)
• Heating inspection: Per GEG, 15 years after installation for buildings with 6+ units

The costs of these inspections can be passed through to the tenant, but the organizational responsibility typically remains with the landlord.

6. Rent Reduction in Commercial Leases Commercial tenants also have a rent reduction right for defects (BGB § 536), unless validly restricted:

• A complete exclusion of rent reduction rights in standard-form contracts is void
• Restriction to assertion only by court action (Minderungsvorbehalt) is generally permissible
• Individually negotiated restrictions are broadly enforceable

Best Practices for Landlords

1. Define maintenance obligations clearly and in detail in the contract
2. Choose the appropriate model (roof & structure, triple-net, full-service) based on property type and tenant
3. Retain organizational responsibility for statutory inspections
4. Document the property condition at handover (protocol with photos)
5. Establish a maintenance schedule and monitor compliance

Landager supports commercial property management with maintenance cycle tracking, defect documentation, and statutory inspection deadline monitoring.

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