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Viewing rights: In these 6 cases, the landlord may enter the apartment

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Suddenly the landlord is at the door to inspect the smoke alarm. But do tenants have to let their landlord into the apartment at all times? Then the landlord has a viewing right.

When the apartment is rented, the landlord gives up the house rights. This means that the tenant can determine who is allowed to enter his apartment - and who is not. So if the landlord stands in front of the door unannounced and asks to be admitted, the tenant can refuse him. Because according to the Basic Law, the apartment is inviolable. This means that the tenant can determine who is allowed to enter his apartment. The landlord therefore has no right of entry. However, this does not automatically mean that the landlord always has to stay in front of the door.

Even if the tenant has house rights, the landlord is obliged to ensure that the tenant can live without disruption. In addition, there is the justified interest of the landlord in the protection of the building fabric and in the maintenance of the apartment. Therefore, in some cases the tenant has to grant him access to the rented property - if there is a specific reason and the landlord announces his viewing of the apartment in good time.

Cases, Exceptions, and Rules

Case 1: New letting or sale

"The landlord may enter the apartment if he wants to visit the apartment with prospective buyers or renters," explains Katrin Hartwig, managing director of the Freiburg Region Renters' Association. In the case of a tenancy, this must first be terminated before the landlord can view the apartment with prospective tenants. If the apartment is to be sold, the landlord has to make a pre-selection of potential buyers and can show them the apartment. However, if he conducts mass viewings every other day, the tenant does not have to tolerate this.

Case 2: modernization measures

If the landlord is planning to modernize the rented space and wants to get an idea of ​​the condition of the apartment, he has a viewing right. In this case, the tenant must not only grant the landlord access to the apartment, but is also obliged to tolerate the modernization measure within the framework of § 555 d BGB. The tenant is then also obliged to allow craftsmen into the apartment. If the tenant refuses to tolerate the modernization measure, the landlord must first bring about a judicial clarification. Only then is the right of entry formally granted and his craftsmen are allowed to start building work in the tenant's apartment.

Case 3: renovation and maintenance measures

If there is a defect in the rental property in the apartment - for example because the water in the shower no longer drains - the tenant must also tolerate the landlord in the apartment in this case.

Case 4: Imminent damage

If there are indications of impending defects in the rental property, the tenant must grant his landlord access to the apartment, ”says Katrin Hartwig from the Freiburg tenants' association. This is the case, for example, if a musty smell indicates mold or moisture damage can be seen from the outside.

Case 5: breach of contract

"If the landlord has points of departure for the tenant to behave contrary to the contract, for example because he keeps a dog despite the prohibition, he must inform his tenant of this suspicion," explains Siegmund Chychla, chairman of the Hamburg tenants' association. But the same applies here - nothing works without an appointment. If the landlord rings the doorbell in order to personally convince himself of the presence of the animal roommate, the tenant can refuse him entry. Even if the tenant is accommodating a subtenant without permission, the landlord cannot enter the apartment unannounced in order to track down the persona non grata.

Case 6: Reading from measuring devices

In this case, the landlord or the employee of the reading company may only stay in the rooms that he has to enter to read the measuring devices. In addition, he is only allowed to stay in it for as long as necessary.

Viewing rights: It depends on the individual case

Katrin Hartwig says whether the landlord has the right to view the property in other cases. Various reasons why a landlord has the right to view the property have already been recognized in court. For example, the Munich District Court has ruled that the landlord has the right to inspect the apartment after the contractually agreed deadlines for cosmetic repairs have expired in order to be able to determine whether a renovation is necessary (AG München, Az .: 461 C 19626/15).

Without prior notification: only in an emergency

In urgent emergencies, the landlord can enter the apartment without registering in advance. This is the case if, for example, there has been a burst water pipe. Since the landlord is not allowed to have a duplicate key for the apartment, he can in urgent cases - if he cannot reach the tenant - have an emergency opening carried out. "In this case, the landlord is pursuing a legitimate interest," says Siegmund Chychla. If the tenant refuses the landlord access even in an emergency and the damage increases as a result, the tenant acts contrary to the contract. Accordingly, he must bear the costs for the additional damage incurred.

If the landlord gains access to the apartment with a duplicate key without authorization, he is trespassing. The tenant can report him or terminate his tenancy without notice. Unsure whether the landlord can have a duplicate key? The legal position on this is clear.

In these cases the landlord has no right to view the property

Take a quick look to see if everything is in order - landlords are not allowed to do that. There is also a BGH judgment on this (VIII ZR 289/13). In this case it was about the fact that the landlord had made an appointment with the tenant to inspect the installed smoke alarms. Everything went according to the rules until the landlady inspected the rooms in which no smoke alarms were installed against the will of the tenant. When the tenant asked his landlady to leave the apartment, she refused and the tenant carried her out of the house - and was therefore given notice. The court ruled that the landlord had violated the tenant's house rules and the behavior of the neighbors was abusive, but not to the extent that a termination was justified.

The landlord is also not allowed to carry out routine checks at regular intervals - every or every other year. However, the AG Munich (461 C 19626/15) decided that a landlord can request to inspect the apartment every five years. According to the court, this is not a routine check, but the proper management of the rental property. If the landlord could not check the condition of the apartment, he would be excluded from controlling his property for decades.

A clause in the rental agreement that grants the landlord the right to inspect the apartment without prior notice and appointment is ineffective (Section 307, Paragraph 1 of the German Civil Code), as is the clause stating that the landlord is allowed to inspect the apartment for several hours every day.

The landlord must adhere to this

Even if there is a legitimate reason, the landlord cannot simply ring the bell for his tenant and enter the apartment. In this case, the tenant is even entitled to reject his landlord. So if a modernization measure is pending, the landlord has to make an appointment. The rule here is that the landlord must inform his tenant in writing in good time - the respective lead time depends on the individual case. If the tenant is not working, it is sufficient, according to a judgment of the Cologne District Court, if he is notified 24 hours in advance. However, the relevant case law differs, spans of 24 hours to two weeks are common. In general, there are no binding, statutory deadlines for pre-registration.

If the landlord announces his visit, he must state both the purpose of the visit as specifically as possible and the time and space of the visit. The landlord must also consider the tenant's concerns when setting the viewing appointment. The inspection must take place on weekdays - the times of day, but also the days, vary. Because while some courts consider a period of 10 a.m. to 6 p.m. to be permissible, others skip lunchtime and the case law also sees Saturday as a working day for the most part. However, tenants do not have to tolerate viewing appointments on Sundays and public holidays - unless there is danger in arrears.

Offer an alternative date

Even if the landlord announces the viewing appointment in accordance with all specifications, the tenant can refuse this - at least once - if he is unable to do so. However, he then has to offer an alternative date. Once the viewing appointment has come, the landlord must do it as carefully as possible. For example, if the tenant demands that the landlord only enter the apartment without shoes, the landlord must adhere to this.

"The landlord can also take a third person - such as a craftsman, a prospective tenant or buyer or the manager - to the viewing appointment, provided he has announced this. However, there must be a specific reason for this, for example because a repair is pending. ”Siegmund Chychla, chairman of the Hamburg tenants' association.

What can the tenant do if the landlord enters the apartment without consent?

The landlord may not have a duplicate key to the apartment. However, if the tenant suspects that it is different, he can forbid him to enter it and draw attention to the fact that if he does not comply, it is a trespass, says Siegmund Chychla from the Hamburg tenants' association. This criminal offense could be reported.

Furthermore, the tenant can give notice of termination without notice. However, in this case he has the burden of proof. "In certain cases it can even go so far that the landlord can also be charged with all the costs caused by the termination without notice," adds Siegmund Chychla. "The only exception in which the landlord has the right to enter the apartment without the tenant's permission is in default if there is danger," emphasizes Katrin Hartwig.

If the tenant has caught his landlord entering his apartment without permission or has a legitimate suspicion in this regard, he can also resort to less drastic means and replace the lock or cylinder. But even if the tenant knows that his landlord has a duplicate key, but he does not give it up when requested, the tenant can exchange the lock - at the landlord's expense (AG Köln, Az. 217 C 483/93). "But if the tenant moves out, he has to restore the original condition," adds Siegmund Chychla.

These rules apply to the landlord when viewing

The landlord must also adhere to certain rules inside the apartment. "So - unless he has the tenant's consent - he is not allowed to take photos or film during the tour," says the chairman of the Hamburg tenants' association.

In addition, the tour is mostly limited to certain rooms. For example, if there is a problem with a clogged drain in the bathroom, the landlord may only enter the rooms that lead to the bathroom. All other rooms as well as the cupboards in the affected room are taboo for him. Whether the tour is actually so categorical always depends on the relationship between the two parties. Because if the relationship between tenant and landlord is good, the boundaries are certainly less strict and after inspecting the damage in the bathroom, a joint afternoon coffee follows in the kitchen.

Evelyn Eberl / Kilian Tress

23.03.2021


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