Under German law, all items permanently attached to the building or the land become the property of the owner of the land pursuant to § 946, §§ 93-95 of the German Civil Code (BGB), because they become essential components of the land. This also applies to inserted things, such as bathtubs, washbasins, doors, windows, so-called leasehold improvements.
In principle, when moving out, the tenant must, in addition to returning and vacating the rented property (§ 546 BGB), also remove at his own expense the fixtures and structural changes he has made, such as fitted kitchens, floor tiles and safes. This also applies to items owned by the landlord or which have become his property. For the obligation under rental law, the ownership situation is therefore irrelevant.
The question therefore arises as to the legal fate of the tenant’s fixtures and fittings if the lease agreement does not contain any provision on how to deal with tenant’s fixtures and fittings after the tenant moves out.
No obligation to remove – groups of cases
In case law and literature, three groups of cases have emerged in which there is no obligation to remove the tenant’s fixtures and fittings.
– Necessary furnishings
A removal obligation does not apply in the case of a necessary facility, through which the contractual use of the leased property is possible at all. In other words, the rental object would be defective without this equipment and the landlord would have to provide this equipment.
– Furnishings designed for the long term
Exceptionally, the obligation to remove the furnishings does not apply if the furnishings are intended to remain permanently and are suitable and intended to remain and are useful for the rental object beyond the rental period.
– Permission by landlord
The obligation to remove the furnishings also does not apply if the landlord has permitted the furnishings and waived their removal upon moving out. A written
From a property law perspective, the ownership situation would be decisive for the fate of tenant fixtures. The tenant would have to remove items belonging to him and those owned by the landlord would remain behind. Property law would then determine tenancy law. Then the tenant would not have the problem of removing other people’s things and having to pay damages for this if necessary.
The case groups mentioned also correspond to this in the result. In principle, it is the subjective intention of the installer at the time of the connection that counts, insofar as it coincides with the objective circumstances of the installation. It is also possible to base the decision on the objective situation. The tenant is only entitled to the leased property under the law of obligations. Therefore, a rebuttable presumption is assumed that the leasehold improvements are only made temporarily by the lessee and thus remain his property.
It follows that, in principle, leasehold improvements remain in the tenant’s ownership if they are not intended and suitable for permanent retention. The tenant must then remove them. Conversely, items permanently and firmly attached to the rented property become the property of the landlord and must remain in the apartment when the tenant moves out.
Right of removal – § 539 (2) BGB
According to § 539 para. 2 BGB, the tenant is entitled to take away facilities with which he has provided the leased property. A facility is a thing that is connected to the leased property and is intended to serve the purpose of the leased property. It is irrelevant for the right of removal whether the thing has become an essential part of the leased property through the connection.
In this respect, the first group of cases mentioned above plays a role here, in which the right of removal does not exist if the apartment has only been changed into a condition in accordance with the contract as a result of the structural alteration.
Rent increases – §§ 558, 559 BGB
If the fixtures have become the property of the landlord and modernization measures, for example, are based on them, this can justify a rent increase.
Unauthorized installations and alterations
In principle, the tenant requires the landlord’s permission for structural changes. Due to the clear regulation of ownership, a removal obligation would then be obsolete if the installations or conversions have become the property of the landlord.
As a result, the assessment of leasehold improvements under property law is practicable. Problematic installations or conversions would also be clearly categorized in this way.