Smoking in a rented flat: what landlords can claim at move-out
When smoking marks count as normal wear, when your repainting clause helps and what you can claim compensation for.
Smoking counts as normal use under the lease. The tenant only pays for repainting if the lease has a valid clause on Schönheitsreparaturen (cosmetic repairs such as repainting). For damage beyond that, you can claim compensation if you can prove the condition at move-in.
What you need before you deduct for smoking marks
For every item you want to deduct, you need the following.
- 1
A valid clause
You need a valid clause on Schönheitsreparaturen to charge for repainting the walls and ceilings.
- 2
Damage beyond repainting
To claim compensation, the marks must go beyond Schönheitsreparaturen. Repainting and wallpapering are then not enough to remove them.
- 3
Proof of the condition at move-in
You need photos showing that the walls and door frames were not yellowed back then.
- 4
A record when the flat is returned
Enter each spot in the Übergabeprotokoll (handover record), with the room and a photo.
- 5
Proof of the cost
You need a quote or an invoice, at the current value rather than the price of a new item.
- 6
Claim within six months
Make your claims within six months of the day the flat is returned.
Why this matters
With smoking marks, everything depends on two things: your clause and the condition at move-in. You check the clause once. You can only record the move-in condition on move-in day.
General information, not legal advice.
Frequently asked questions
Can I deduct the painting costs after a smoker from the Kaution?
You can only deduct the painting costs if the tenant validly took on the Schönheitsreparaturen. Otherwise you do not get the cost of repainting as compensation either.
When does a smoker owe compensation?
A smoker owes compensation when the marks go beyond Schönheitsreparaturen, meaning repainting and wallpapering are not enough to remove them. Burn holes are separate damage anyway.
Can I ban smoking in the flat?
The BGH treated smoking as use that the lease allows where nothing else was agreed. Have it checked for your individual case whether and how a smoking ban can be validly agreed.
Also in this topic: Move-in Übergabeprotokoll: what landlords should recordÜbergabeprotokoll for landlords: what goes in at move-outÜbergabeprotokoll in court: what does it prove for landlords?Übergabeprotokoll template for landlords
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