Maintenance costs in German commercial leases: does the clause need a cost cap?

What the dispute is about

Maintenance costs appear in almost every German commercial lease: the annual inspection of the ventilation system, sprinkler servicing, the lift contract. What is disputed is not whether such costs may be passed on, but how the clause must be worded. Specifically: does it need a cost cap in monetary terms so the tenant can foresee the exposure they are taking on?

Four appellate decisions from the past eighteen months answer that question in opposite ways. The Federal Court of Justice has not yet ruled; leave to appeal has been granted. ⁷

Servicing, upkeep, repair

The distinction carries the whole dispute, so first things first:

Wartung (servicing) means scheduled, recurring, preventive measures. A ventilation system is inspected annually, filters are replaced, functionality is documented. These costs arise regularly and their scale can be estimated.

Instandsetzung (repair) remedies defects and damage that have already occurred. Nobody knows in advance when an installation will fail or what the repair will cost. ⁹

This boundary matters legally because maintaining the leased property is the landlord's responsibility under section 535 BGB. Whatever the tenant is to take over must be expressly stipulated in the contract. And section 1(2) BetrKV expressly excludes upkeep and repair costs from operating costs. ^2,3

What the Federal Court of Justice has already decided

For the upkeep of shared areas and installations, a clear limit has applied since 2012. The court put it this way: transferring that burden is „nur dann wirksam, wenn sie in einem zumutbaren, durch eine Kostenbegrenzung beschriebenen Rahmen erfolgt" (only valid if it takes place within a reasonable framework defined by a cost limit). Without a cap, the clause unreasonably disadvantages the tenant and is invalid under section 307 BGB. ^1,4 The court confirmed this line in 2014. ⁵

The decisive point for today's debate: in that decision, the servicing of technical installations was governed together with upkeep in a single clause. The court struck the clause as a whole and therefore did not have to answer whether a pure servicing clause requires a cap on its own. That is precisely the gap the appellate courts are now filling in different ways. ^4,7

Four judgments, two answers

As at August 2026. ^6,7,8,9

Rostock and Munich see no material difference from upkeep. Maintenance costs, they hold, are not reliably calculable for the tenant either, particularly for complex shared installations. Uncapped allocation therefore places an unreasonable burden on them. The Munich court additionally classifies servicing as part of the maintenance obligation and applies the Federal Court of Justice principles directly. ^6,8

Karlsruhe disagrees: servicing is a different matter. Because the measures recur predictably and specifically do not serve to remedy damage, the costs are foreseeable. They are therefore ordinary operating costs, and the law requires no cap for those. ⁹

When the clause mixes servicing and upkeep

Many contracts cover both in a single sentence: "servicing, upkeep and repair of the technical installations". For this situation the Rostock court applied the so-called blue-pencil test. If the word "servicing" is deleted, what remains is a provision that is comprehensible in itself and retains its own scope of application. The clause does not fall away entirely; it continues to apply without the servicing element. ⁶

In practice this means that whether a clause is wholly or only partly invalid turns on its sentence structure. Two contracts with the same commercial substance can end differently because one separates what the other combines.

What real contracts contain

In the commercial leases we analyse at Boomerent, maintenance clauses without a monetary limit are not a marginal phenomenon. A typical formulation assigns the servicing of technical installations to the tenant in blanket terms, without naming the individual installations and without setting a ceiling. Just as frequently, servicing appears in the same breath as upkeep and repair, which is exactly the constellation the courts are arguing about.

Where servicing appears in the contract is also striking. Often it is not a separate item but sits under "sonstige Betriebskosten", catch-all item no. 17 of the BetrKV schedule. Independently of the cost-cap question, the rule there is that such costs can only be passed on if the individual cost types are specifically named. A blanket formulation is not enough. More on this in the overview of allocable operating costs in commercial leases. ³

How to place your own clause

Four questions help with an initial assessment:

1. Is servicing mentioned in the contract at all? Without an express agreement, the maintenance obligation stays with the landlord (section 535 BGB). What the contract does not name cannot be passed on. ²
2. Are the installations listed individually? A clause that merely says "servicing of technical installations" is a different matter from a list naming ventilation, lift, fire alarm system and sprinklers.
3. Is there a cost cap? A percentage of the annual rent or an absolute amount. If neither is present, the dispute described here concerns you directly.
4. Does servicing stand alone or together with upkeep? That determines which part of the clause is even at issue in a dispute. ⁶

What happens next

Leave to appeal to the Federal Court of Justice has been granted. A definitive ruling is therefore in sight, but its outcome is open. ⁷

For tenants with running contracts, the sensible first step is to know their own contract precisely: whether a maintenance clause exists, which installations it covers, whether it sets a limit, and how it is linked linguistically to upkeep. Those four points determine whether the forthcoming ruling will matter to you at all.

Whether any claims follow in a specific case depends on the contract wording, the place of jurisdiction, the accounting period and limitation periods, and belongs in the hands of a lawyer.