“Broom-Clean” Return of Leased Property under German Law

Almost every commercial lease contains provisions intended to define, as clearly as possible, the condition in which the tenant must return the leased premises to the landlord at the end of the tenancy. In this context, lease agreements frequently refer to an “orderly” or “contractual” condition, to basic cleaning obligations, and—most commonly—to a requirement that the premises be returned in a “broom-clean” condition.

In practice, however, many parties give little thought to the specific requirements of a “broom-clean” return when entering into the lease. As a result, questions—and not infrequently disputes—often arise during the preparation for handover or upon the actual return of the premises.

Meaning and Requirements of a “Broom-Clean” Return

In principle, the parties to a lease are free to agree on specific requirements regarding the condition in which the leased property must be returned. If the lease does not contain detailed provisions regarding cleaning or other concrete obligations, the tenant is generally required to return the premises in a condition corresponding to normal contractual use.

In such cases, customary practice is typically decisive. As a rule, and in the absence of express contractual provisions to the contrary, this leads to the conclusion that a “broom-clean” return is owed.

A “broom-clean” condition generally means that:

• the premises have been swept or vacuumed;

• coarse dirt on floors, walls and ceilings has been removed; and

• radiators, window frames, doors and sanitary facilities have been wiped down.

By contrast, a “broom-clean” return does not require:

• the cleaning of windows;

• deep or basic cleaning of carpets;

• intensive cleaning of sanitary installations; or

• the cleaning of curtains or similar furnishings.

Potential for Disputes, Legal Consequences and Practical Recommendations

Even where both parties are aware of the general meaning of a “broom-clean” return, disputes may still arise. In practice, landlords often take the view that the premises were not returned in a broom-clean condition, while tenants assume that they have complied with their obligations. A legally clear distinction is difficult to draw in individual cases.

Against this background, it is often advisable to conduct a preliminary inspection prior to the final handover. Any discrepancies can be discussed constructively at this stage, and the tenant may be given the opportunity to remedy any deficiencies and restore a broom-clean condition before the final return.

From a landlord’s perspective, it is particularly important to note that the return of the leased property may not be refused on the grounds that the premises are not in the contractually owed condition or are not broom-clean. Under § 546 of the German Civil Code (BGB) and established case law of the German Federal Court of Justice, the tenant’s return obligation is limited to vacating and surrendering possession of the leased property. The actual condition of the premises at the time of return—such as whether the agreed broom-clean condition has been met—is legally irrelevant for the effectiveness of the return.

If a landlord refuses to accept the return of the premises on the basis that they are not broom-clean, the landlord is deemed to be in default of acceptance. In such circumstances, the landlord cannot rely on § 546a(1) BGB to claim compensation for use due to the alleged withholding of the leased property.

Accordingly, a failure to return the premises in a contractually compliant or broom-clean condition constitutes defective performance rather than non-performance of the return obligation. Nevertheless, the landlord may still be entitled to claim damages. Such claims may be asserted after the expiry of a reasonable grace period, provided that the tenant has not definitively refused to remedy the outstanding deficiencies.

This article was first published in ImmobilienReport Metropolregion Rhein-Neckar, issue 198.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germany@transatlanticlaw.com

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