Wear or damage? What landlords may charge (2026)
Wear or damage? What landlords may charge
Anything that comes from normal, contractual use cannot be billed. The rent already covers it.
For anything beyond that the burden of proof is yours first: an objective deterioration, exceeding normal wear, and a cause within the tenant's sphere of control; only then must the tenant exonerate themselves (§ 280 Abs. 1 Satz 2 BGB). What is owed is the current value, after a "new for old" deduction.
§ 538 BGBIn 60 seconds
The tenant is not answerable for changes brought about by contractual use; they are covered by the rent and may neither be withheld from the deposit nor billed separately (§ 538 BGB).
You must first prove three things: an objective deterioration, that it exceeds contractual wear, and that the cause lies within the tenant's sphere of control.
Only then does the reversal of the burden of proof under § 280 Abs. 1 Satz 2 BGB apply and the tenant must exonerate themselves.
What is owed is the current value after a "new for old" deduction. Once the economic life is exceeded the claim falls away entirely, even where causation is proven.
Claims become time-barred six months from the return of the flat, regardless of when you discover the damage (§ 548 Abs. 1 BGB).
What the law says
The tenant is not answerable for changes or deterioration of the property brought about by contractual use. Working translation; the German original is the binding text.
A worked example
A carpet is damaged at move-out. An economic life of ten years is applied.
From year ten the item is written off and the claim falls away entirely. Demanding the replacement cost makes the whole statement vulnerable.
Where the line falls, with examples
| Normal wear (not billable) | Damage (billable, on proof) |
|---|---|
| Tracks and pressure marks in the carpet | Burn hole, deep tear, large stain |
| Yellowed or darkened wall paint | Heavy nicotine staining, scratched walls |
| A usual number of drill holes | Drilling into tiled splashbacks or natural stone |
| Matted sealing, fine scratches | Deep scratches from moving furniture |
| Worn silicone and sealing joints | Cracked tiles, chipped basin |
| Use marks on the worktop | Burn and cut marks in the worktop |
| Limescaled taps | A torn-off tap, a broken window handle |
| Usual traces of a permitted pet | Scratched door leaves, chewed skirting |
It comes down to the individual case. Above all the age of the item and the length of the tenancy. After ten years the yardstick for "normal" is not the one that applied after two.
How to record the move-in condition is in Handover at move-in; what you may withhold from the deposit is in Withholding or returning the Kaution.
What it means for each side
- Check every line item: is it really just normal wear?
- Ask the age of the item and the current value applied.
- Require a concrete description: room, location, kind, extent.
- Check whether the six-month period has already run.
- Document the move-in condition, without it the first step of proof almost always fails.
- Strip out § 538 BGB items before you draw up the statement.
- State the current value and the "new for old" deduction openly.
- Bill within six months (§ 548 Abs. 1 BGB).
Common mistakes
The commonest reason deposit statements fail.
Without a documented initial condition you can hardly show the deterioration arose during this tenancy. In practice it is your most important document.
That works as a negative acknowledgement of debt (§ 397 Abs. 2 BGB). The claims are gone.
Without a current-value deduction the item is vulnerable; and close-ups without wide shots leave the context open.
What to do next
Document the move-in condition in full, concretely and with photos. Do it with BildProof, about two minutes a room →
At return, check everything and record only what you actually checked: never a blanket "no defects".
Describe every item concretely (room, location, kind, extent) and strip out wear under § 538 BGB.
Establish the current value, state the "new for old" deduction, and bill within six months (§ 548 Abs. 1 BGB).
Frequently asked questions
May I withhold normal wear from the Kaution?
No. Changes and deterioration caused by contractual use are not the tenant's responsibility (§ 538 BGB); they are covered by the rent. This includes worn tracks, yellowed wall paint, the usual drill holes, worn joints and floor seals gone matt. Charging such items risks the entire deposit settlement being challenged.
What do I have to prove as a landlord?
You must prove that there is an objective deterioration, that it goes beyond vertragsgemäße Abnutzung (normal wear from contractual use, § 538 BGB), and that the cause originates from the tenant's sphere of control, not from the condition of the building. Only if you succeed does the reversal of the burden of proof under § 280(1) sentence 2 BGB apply and the tenant has to exonerate themselves.
Can I claim the price of a new floor covering?
No, what is owed is the current value. A "new for old" deduction must be applied: the shorter the remaining economic service life, the lower the compensation. Carpets are assigned roughly 10 years depending on quality, up to 15 for high-quality material. Once that service life has passed, the covering is written off and no claim remains.
How long can I claim for damage after move-out?
Your claims for changes or deterioration of the rented property expire six months after the flat is returned (§ 548(1) BGB). The period runs regardless of when you discover the damage. So inspect, document and quantify immediately after the return.
What do I risk by writing “no defects” in the return record?
If you certify a defect-free condition on return, that can amount to a negatives Schuldanerkenntnis (negative acknowledgement of debt) under § 397(2) BGB. Later damages claims regarding that condition are then excluded. The only exception is hidden defects not detectable on careful inspection in daylight. So record only what you have actually checked.
Is a move-in record worth it for the landlord?
In practice it is the more important of the two records. Without a documented initial condition you can barely prove at move-out that damage arose during this tenancy, and that proof is precisely your burden. A clean move-in record with photos decides later whether any claim is enforceable at all.
This page gives general information as at the date shown. It does not replace legal advice on an individual case.