How to revoke the deposit
The question of when the deposit will be returned is one of the most important points for most tenants when the rental contract is terminated, because the money is often needed to pay the deposit for the new apartment. But when does the tenant get the deposit back? When handing over the apartment and keys? Or later? Until when can tenants expect the deposit to be repaid?
The following article explains briefly for tenants when they will get the deposit back.
I. Will the deposit be returned when the keys are handed over?No. Usually not. The tenant is obliged to return the apartment, including the keys, to the landlord, but the landlord is not obliged to return the deposit at the same time: the tenant's claim to the return of the deposit begins when the tenancy ends - i.e. when the tenant moves out . However, the deposit will only be returned when its purpose of securing claims has been fulfilled. Finally, the deposit should secure all (not yet) due claims of the landlord that arise from the tenancy and its settlement (BGH, judgment of January 18, 2006, Az .: VIII ZR 71/05, judgment of March 8, 1972, Ref .: VIII ZR 183/70).
Therefore, according to the case law of the Federal Court of Justice, the landlord is granted a certain period of examination and consideration and may withhold the deposit approx. 6 months (and more!) After the tenant has moved out in order to examine his claims against the tenant (BGH, Az .: VIII ZR 36/12). In other words, if the landlord wants to wait and see whether there are additional additional costs, for example, he can keep the deposit until it is possible and reasonable for him to prepare the ancillary costs account (see BGH, judgment of January 18, 2006, Az .: VIII ZR 71/05 ).
II. Can you keep the keys until you get the deposit?
No. As explained under I., the point in time when the tenant receives the deposit depends largely on whether the landlord still has claims against the tenant.
In addition, as a tenant, you are liable for damages if you do not hand over the keys or not in full. According to Section 546 (1) of the German Civil Code (BGB), tenants must return the apartment to the landlord after the lease has ended. Otherwise they are obliged to pay compensation to the landlord according to § 546 a BGB.
In order for § 546 BGB to be fulfilled, the tenant must hand over all keys to the rented apartment and parts of the building, including those that have been copied, to the landlord (see OLG Düsseldorf, judgment of 14.03.1995, Az .: 24 U 163/94 and judgment of August 31, 2006, Az .: 10 U 46/06). Only then has the tenant completely given up ownership of the apartment and given ownership to the landlord, as required by Section 546 of the German Civil Code (BGB).
III. Can the landlord withhold the entire deposit if the handover of the keys was unproblematic?Yes and no. The fact that the keys were accepted without any complaints does not say anything about whether the tenant must receive the entire deposit amount. In the case of an unobjectionable handover of the apartment with a handover protocol, the tenant can very well assume that there is no deposit settlement pending. However, this does not rule out that the deposit will still be withheld for the additional costs.
Depending on this, the amount of the deposit that the landlord may withhold may vary. Basically, it is assumed that he may withhold a reasonable part of the deposit in order to secure any claims (BGH, judgment of January 18, 2006, Az .: VIII ZR 71/05). How high that is is very individual.
IV. Does the tenant have to get the full deposit?
No. If a landlord has outstanding claims from the tenancy against the tenant, he may offset these against the deposit, e.g. claims for damages due to damage to the apartment, unpaid rents or outstanding additional costs. The tenant then gets back the part of the deposit that is left over.
The following article shows how landlords generally proceed for a set-off: Rental deposit: Use - This is how landlords proceed (with a sample). You can read here what you need to consider when setting off an additional cost additional payment: Set off the rental deposit with an additional additional cost payment - is that permissible.
The deposit is not necessarily returned when the keys are handed over. In most cases, all or part of the repayment is made later. That depends entirely on how long it takes the landlord to check his possible claims against the tenant.
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