Withholding or Returning the Kaution: Landlords 2026
Withholding or Returning the Kaution: Landlords
Only so far as you can name a concrete, legitimate claim against the tenant.
There is no repayment deadline in the law; case law grants you a reasonable review period of usually three to six months from the return of the flat (§ 551 BGB). The undisputed remainder must be paid out within it.
§ 551 BGBIn 60 seconds
You may only withhold so far as a legitimate claim against the tenant remains. A blanket retention "to be safe" is not covered.
Three kinds of claim justify it: unpaid rent, damage beyond normal wear and tear, and outstanding Nebenkosten.
Normal wear and tear, yellowed walls, worn tracks, a usual number of drill holes, is covered by the rent and is not a ground for deduction.
While the Nebenkostenabrechnung is still running you may retain a reasonable portion, measured against the back-payment you expect, not against the whole deposit (BGH, VIII ZR 71/05).
Interest accrued over the tenancy belongs to the tenant and is paid out with the deposit (§ 551 Abs. 3 BGB).
What the law says
§ 551 BGB governs the amount and the holding of the security: at most three times the Nettokaltmiete, payable in three equal monthly instalments, held separately from the landlord's assets and bearing interest, with the interest belonging to the tenant. The provision names no repayment deadline: the review period of three to six months comes from case law.
What you may retain, and what you may not
| Permitted retention | Not a retention |
|---|---|
| Rent in arrears | Normal wear and tear (faded paint, worn tracks) |
| Damage the tenant is responsible for | Usual wear on carpet or flooring |
| An established Nebenkosten back-payment | Renovation without a valid clause |
| A reasonable portion for a pending statement | A blanket retention "to be safe" |
The same process from the tenant's side is in Reclaiming your Kaution. How the deposit must be held during the tenancy is in Holding the Kaution correctly.
What it means for each side
- Ask for every line item separately and with evidence.
- Insist on the undisputed part being paid within the review period.
- Check whether billed items are really just normal wear and tear.
- Claim the interest expressly.
- Pay out the undisputed part before the statement is ready.
- For a pending statement, retain only the back-payment you expect.
- Justify every deduction in writing and in a way that can be followed.
- Settle the interest along with it.
Common mistakes
Only a reasonable portion is permitted, measured against the expected back-payment.
Traces of contractual use are covered by the rent.
Whatever is undisputed must reach the tenant within the review period.
It belongs to the tenant (§ 551 Abs. 3 BGB) and has to appear in the statement.
What to do next
Take the flat back and set down its condition in the handover record. Do it with BildProof, about two minutes a room →
Establish the claims: unpaid rent, damage, expected Nebenkosten back-payment.
Pay out the undisputed part within the review period.
Justify every retention in writing and in a way that can be followed.
Once the Nebenkostenabrechnung is ready, pay the remainder with interest.
Frequently asked questions
How long may the landlord keep the Kaution?
§ 551 BGB sets no fixed deadline. Case law grants the landlord a reasonable Prüffrist (review period), usually put at three to six months from when the flat is handed back. Within that time the landlord must review any open claims and pay out the undisputed part of the Kaution.
Which deductions from the Kaution are allowed?
Only three: unpaid rent, tenant-caused damage that goes beyond normale Abnutzung (normal wear and tear), and unpaid Nebenkosten (operating costs). Normal wear, faded walls, minor traces of use, is covered by the rent and does not justify a deduction.
May the landlord withhold the Kaution for the Nebenkostenabrechnung?
Yes, a reasonable portion. If the landlord justifiably expects a back-payment from a Nebenkostenabrechnung still to be prepared, a corresponding part may be retained until the statement is finalised (BGH, VIII ZR 71/05). The rest must be paid out.
Must the Kaution be returned with interest?
Yes. The landlord must hold the Kaution separately from private assets, insolvency-proof and interest-bearing (§ 551 Abs. 3 BGB). The accrued interest belongs to the tenant and is paid out with the deposit. The exception is student and youth hostels.
What happens if the landlord withholds the Kaution wrongly?
The tenant can demand the undisputed part at once and, once the review period ends, sue for payment. An unjustified or excessive retention puts the landlord in the wrong and can lead to default interest and litigation costs.
This page gives general information as at the date shown. It does not replace legal advice on an individual case.