Proving Damage with Photos: What Landlords Need (2026)
Proving Damage with Photos: What Landlords Need
Photos carry only with two anchors: a second record from move-in, and a provable time of capture.
To withhold from the deposit you must show that there is damage, that it exceeds normal wear (§ 538 BGB) and that it arose during this tenancy. Only once all three are established must the tenant exonerate themselves (§ 280 Abs. 1 Satz 2 BGB).
Art. 41(2) eIDAS RegulationIn 60 seconds
You must establish three things: that there is damage, that it exceeds normal wear (§ 538 BGB), and that it arose during this tenancy. Miss one and the claim fails.
A photo is an object of inspection (§ 371 ZPO) weighed freely (§ 286 ZPO). Its weight is not automatic. It depends on how well the photo is anchored.
Proving that damage arose during this tenancy is always a comparison between two points in time. A single move-out photo shows a moment, and a moment cannot show a change.
A photo carries no reliable date: the date on an image file can be changed in seconds. The tenant only has to dispute it; you have to prove it.
A qualified eIDAS timestamp carries the presumption under Art. 41(2) eIDAS Regulation that its date and time are accurate and the linked data intact, so the other side would have to rebut a presumption in law.
What the law says
A qualified electronic time stamp enjoys the presumption of the accuracy of the date and time it indicates and of the integrity of the data linked to them. What is stamped is the hash of the image, so any later change makes verification visibly fail.
What you have to prove, and what proves it
| What you must prove | What establishes it |
|---|---|
| There is damage | photos of the condition |
| It exceeds normal wear | photos + a concrete description per room |
| It arose during this tenancy | the move-in record compared with the move-out record |
| The photos date from the time claimed | a qualified eIDAS timestamp (Art. 41(2)) |
| The tenant accepted the findings | a record signed by both sides (§ 416 ZPO) |
| Nothing was left out | complete room-by-room capture |
Read the right-hand column top to bottom, that is the whole method. Each line closes exactly the gap the line above leaves open.
After that, speed counts: your claims become time-barred six months after the flat is returned (§ 548 Abs. 1 BGB), not from discovery. And what can be claimed is the current value after a "new for old" deduction, never the replacement cost: see Wear or damage.
What it means for each side
- Ask for the same set of photos on handover day.
- Check whether billed items are really just normal wear.
- Ask for the current value and the age of the item.
- Check whether the six-month period has been observed.
- Document twice. At move-in and at move-out. The comparison is the proof.
- Make the time of capture provable rather than relying on the file date.
- Have the record signed by both; the photos referred to in it share that anchoring.
- Give the tenant the same set of photos the same day. What they already have, they rarely dispute.
Common mistakes
The most expensive mistake, proof that the damage arose during this tenancy falls away entirely.
That can exclude the claims under § 397 Abs. 2 BGB, even where you discover the damage two days later.
It can be changed and proves nothing. Courts know this.
Pictures the tenant has never seen are almost always disputed. And claiming the replacement cost instead of the current value makes the whole statement vulnerable.
What to do next
Photograph every room: a wide shot from two directions, plus a close-up of every finding. Do it with BildProof, about two minutes a room →
Describe every finding concretely: "bathroom, tiled splashback above the bath, crack approx. 15 cm" rather than "tiles damaged".
Cover everything, including the parts people skip: silicone joints, the inside of oven and fridge, window handles and seals, door frames, radiators, balcony, cellar.
Establish meter readings and the key count together, have both sides sign, and make the time of capture provable.
Frequently asked questions
What exactly do I have to prove to keep money from the deposit?
Three things, in this order: 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 during this tenancy. Only once you have shown all three does the tenant have to exonerate themselves under § 280(1) sentence 2 BGB. Miss any one of them and the claim fails.
Do photos count as evidence in a German court?
Yes. Photos are regularly the most persuasive material in a handover dispute. They show the condition of a flat far better than any written description. Formally a photo is an Augenscheinsobjekt (object of visual inspection, § 371 ZPO) which the court weighs in free evaluation of evidence (§ 286 ZPO). What that means in practice is that their weight depends on how well they are anchored: with a provable date and a signed record they are strong, without those they are contestable.
Why do I need photos from the move-in as well?
Because proving that damage arose during this tenancy is a comparison between two points in time. Move-out photos show what the flat looks like now; only the move-in set shows what changed. Economically the move-in documentation is your most valuable document, without it you can show a scratch exists but not that your tenant caused it.
Does the date on my photo prove when I took it?
No. The date attached to an image file can be changed in seconds with freely available software, so courts do not treat it as proof of when or where a photo was taken. This is the one thing an ordinary photo cannot supply on its own. That is why it is worth securing the date deliberately: with a timestamp that comes from outside, rather than from the device that took the picture.
What does a qualified eIDAS timestamp add?
It fixes the date. A timestamp from a qualified trust service provider under Regulation (EU) No 910/2014 carries a presumption under Art. 41(2) eIDAS that its date and time are accurate and that the linked data is intact. What is stamped is the image's checksum, so any later edit makes verification fail visibly. Instead of you having to prove when you photographed, the other side would have to rebut a presumption in law.
Why do I need a signed record if I have photos?
Because they do different jobs and are strongest together. Photos show the condition; the record sets out what both parties agreed, who was present, the meter readings and the key count. Signed by both sides it is a Privaturkunde under § 416 ZPO, a rule of evidence in the law applies to it, and the photos referenced in it share that anchoring.
How long can I claim for damage after the tenant moves out?
Claims for changes or deterioration of the rented property expire six months after the flat is returned (§ 548(1) BGB). The period is short and runs regardless of when you discover the damage. Document and quantify immediately after the handover.
This page gives general information as at the date shown. It does not replace legal advice on an individual case.