Commercial Maintenance Obligations in Bavaria, Germany

In commercial leasing, Bavarian landlords enjoy freedom of contract that allows them to shift most - or even all - maintenance obligations to the tenant. This stands in stark contrast to residential law, where the landlord's maintenance duty is largely non-negotiable.

1. The Statutory Default (§ 535 BGB) Without contractual modifications, the landlord bears full responsibility for maintaining the property in the condition agreed at lease commencement - including roof, structure, building systems, and all interior components. In practice, this default is almost always modified by the lease agreement.

2. Levels of Maintenance Transfer

A) Interior Maintenance and Minor Repairs The minimum transfer level: the tenant handles all cosmetic repairs and minor fixes within the leased premises (faucets, switches, lighting, interior doors)

Unlike residential law, there is no strict cap required - but clauses should not be entirely unlimited to avoid AGB-law challenges.

B) Full Interior Maintenance The tenant assumes responsibility for all maintenance within the leased space, including building systems components located within it (HVAC units, sanitary installations, interior electrical)

Common for office and retail leases.

C) Triple-Net Lease (Dach und Fach) The most 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)
• The landlord receives a reduced net rent in exchange
• Critical limitation: A "Dach und Fach" clause in standard-form (AGB) leases is generally void under German law - it can only be enforced as an individually negotiated agreement

3. Commercial Rent Reduction Rights

Unlike residential law (where rent reduction cannot be waived), commercial leases can significantly restrict the tenant's rent reduction rights:

• Common clause: "Rent reduction only for defects caused by landlord's gross negligence"
• The tenant must continue paying full rent (under reservation) and seek recourse through litigation
• Complete exclusion of rent reduction may be challenged under extreme circumstances, but partial exclusions are generally enforceable

4. Operating Cost Pass-Through Commercial leases may pass through far more operating costs than residential leases:

• Management fees and administration costs
• Full building insurance premiums
• Maintenance reserve contributions
• All costs of common area maintenance
• Property tax (Grundsteuer)

No reference to the Betriebskostenverordnung (BetrKV) is required - the lease defines the scope entirely.

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