Commercial Maintenance Obligations in Baden-Württemberg: Shell, Core, and Triple-Net

While German law assigns all maintenance and repair obligations to the landlord by default, commercial leases routinely shift a substantial portion of these costs to the tenant. However, even in the commercial arena, standard-form contracts are not immune from judicial review — and German courts have drawn firm lines on what can be transferred.

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The Default Position: Landlord Responsibility

Under § 535 Abs. 1 BGB, the landlord must provide and maintain the property in a condition suitable for its contractual use throughout the tenancy. This includes the building structure, roof, facade, central systems (heating, plumbing, electrical), and all landlord-provided fixtures. This default is almost always modified by contract in commercial settings.

Net Lease Structures

Borrowing from Anglo-American practice (and increasingly common in German logistics, single-tenant office, and retail leasing), net lease models allocate costs as follows:

• Double-Net Lease: In addition to base rent, the tenant pays operating costs plus property taxes and building insurance.
• Triple-Net Lease: The tenant assumes virtually all costs — including structural maintenance and repair of roof, facade, and core building systems ("Dach und Fach").

AGB Limitations!

A full Triple-Net allocation is legally problematic in standard-form contracts (AGB). Under consistent BGH case law:

• "Shell and core" (Dach und Fach) maintenance — exterior facade, foundation, load-bearing walls, the main roof, and central shared systems — must remain with the landlord in pre-formulated contracts. Transferring these costs via AGB constitutes unreasonable disadvantage to the tenant (§ 307 BGB) and is void.
• A genuine Triple-Net allocation is only enforceable through a true individually negotiated agreement (Individualvereinbarung) — requiring demonstrable negotiation of risk allocation and price concession between the parties.

What Can Be Validly Transferred to the Tenant (in AGB)

Commercial landlords may validly require the tenant to bear:

• Cosmetic repairs within the leased premises (often without rigid schedules)
• Minor repairs to items within the tenant's exclusive use, subject to per-repair caps (€150–200) and annual limits (8–10% of annual rent)
• Maintenance of tenant-installed equipment and systems exclusively serving the leased unit
• Interior maintenance of walls, floors, and fittings within the premises

Fit-Out and Reinstatement

Commercial tenants often make significant alterations (medical practice layout, commercial kitchen, retail fit-out). A critical lease clause is the reinstatement obligation (Rückbauverpflichtung) at lease end.

• BGB default: The tenant must remove alterations and restore the original condition (§ 546 BGB).
• Common variations: Contracts may allow the tenant to leave improvements in place (without compensation) or give the landlord the right to demand reinstatement at the tenant's cost.
• ESG consideration: In newer Baden-Württemberg lease templates, sustainability and circular economy principles increasingly influence reinstatement clauses — favoring reuse of materials over full strip-out.

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