Invalid clauses in a tenancy agreement: what holds and what costs landlords money
Kevin Celentano · 2026-10-13
You have bought a flat and taken over a rental agreement from 2009. Or you are re-letting and have filled out a pre-printed form from the stationer's. In both cases, the same applies. You only notice whether the clauses hold up when it comes down to it.
And then it is too late. An invalid clause in a standard form contract is not reduced to the permissible extent. It is completely dropped, and the law takes its place. For landlords, this is almost always the more unfavourable solution.
This guide shows the twelve clauses most frequently disputed, each with the invalid and the valid version. At the end, we calculate what two incorrect sentences cost over ten years.
01Why Standard Form Clauses are Strictly Scrutinised
A contract that one party pre-formulates and presents to the other is called "General Terms and Conditions" (§ 305 para. 1 BGB) in the law. This also applies to the purchased pre-printed form that you only use once. Courts scrutinise such clauses based on three questions:
- Is the clause surprising? Unusual rules that the tenant did not have to expect do not become part of the contract (§ 305c BGB).
- Does it unreasonably disadvantage the tenant? If it deviates significantly from the statutory model, it is invalid (§ 307 BGB).
- Is it clear and understandable? Even a substantively permissible rule fails if an average tenant does not understand it (transparency requirement, § 307 para. 1 sentence 2 BGB).
In addition, there are rules from which the contract may not deviate to the disadvantage of the tenant, regardless of how they are formulated. These include the deposit limit, notice periods, and the right to rent reduction.
The decisive consequence is in § 306 BGB. An invalid clause is not cut back to what is just still permissible; lawyers speak of the prohibition of "validity-preserving reduction". A minor repair clause with an excessively high limit does not continue to apply with a lower limit. It does not apply at all.
02Twelve Clauses at a Glance
The table shows the clauses that occur most frequently in court proceedings. On the left is the version that fails, on the right is the one that holds up according to current jurisprudence.
| Topic | Invalid | Valid | Basis |
|---|---|---|---|
| Cosmetic repairs | rigid deadlines ("every three years kitchen and bathroom"), end renovation always, quota compensation | flexible deadlines "in general", only if the flat was handed over renovated | BGH VIII ZR 361/03, VIII ZR 185/14, VIII ZR 242/13 |
| Minor repairs | without maximum amount per case or without annual limit; obligation to perform the repair yourself | cost sharing with limit per case and per year, only parts with frequent access by the tenant | BGH VIII ZR 91/88, VIII ZR 129/91 |
| Dogs and cats | general prohibition | prohibition with permission subject to weighing up in the individual case | BGH VIII ZR 168/12 |
| Small animals | prohibition or requirement for permission | freely allowed as long as the number is usual | BGH VIII ZR 168/12 |
| Deposit | more than three net cold rents, payable immediately in one sum | maximum three net cold rents, instalment payment possible | § 551 BGB |
| Waiver of notice to terminate | longer than four years or only for the tenant | bilateral, maximum four years from conclusion of contract | BGH VIII ZR 27/04 |
| Operating costs | "The tenant bears the usual ancillary costs" | Reference to § 2 BetrKV, other operating costs named individually | BGH VIII ZR 137/15 |
| Inspection | right of access at any time, control without cause | access for a specific reason after announcement | BGH VIII ZR 289/13 |
| Subletting | general prohibition | permission in individual cases, tenant's claim in case of legitimate interest remains | § 553 BGB |
| Rent reduction | exclusion or restriction | no regulation, the law applies | § 536 para. 4 BGB |
| Graduated rent | graduations as a percentage, interval under one year | amounts in euros, each graduation at least one year | § 557a BGB |
| Index-linked rent | index other than the consumer price index | consumer price index for Germany, adjustment maximum once a year | § 557b BGB |
Cosmetic repairs are a separate chapter with many rulings. We have explained them in detail in the guide on Cosmetic repairs and only include them here in the calculation.
03Minor Repairs: the Clause with the Most Money
Without a clause, the landlord bears every repair, even the dripping tap and the defective light switch (§ 535 para. 1 BGB). A minor repair clause shifts the costs of small repairs to the tenant. It only holds under three conditions:
First, it must be limited to parts exposed to frequent access by the tenant, such as fittings, light switches, sockets, door and window handles, or roller shutter straps (BGH, ruling dated 07.06.1989, VIII ZR 91/88). Pipes in the wall do not belong to this.
Second, it needs a maximum amount per repair and an upper limit per year. The BGH has never named a fixed amount. Lower courts today mostly consider 100 to 120 € per case to be unproblematic, some even 150 €. As an annual limit, 6 to 8 % of the annual cold rent is common.
Third, the tenant may only be obliged to assume costs, not to arrange or carry out the repair themselves (BGH, ruling dated 06.05.1992, VIII ZR 129/91).
04Animals, Subletting, and Inspection
These three topics trigger the most disputes in everyday life because they affect life in the flat.
Animals. A general prohibition on keeping dogs and cats is invalid in a standard form contract (BGH, ruling dated 20.03.2013, VIII ZR 168/12). A permission requirement is valid: the tenant asks in advance, you decide after weighing up the individual case. Reasons for a "no" can be the size of the animal, the number of animals, allergies of other house residents, or the size of the flat. The tenant may keep small animals like fish, hamsters, or budgies in usual numbers without permission.
Subletting. The tenant may not sublet the entire flat without your permission (§ 540 BGB). However, they have a claim to permission for part of the flat if a legitimate interest arises after the contract is concluded, such as a new partner or financial worries after a separation (§ 553 BGB). The contract cannot exclude this claim. In the event of higher occupancy, you may demand a reasonable subletting surcharge.
Inspection. There is no right to control the flat at any time or regularly without cause (BGH, ruling dated 04.06.2014, VIII ZR 289/13). You have access for a specific reason, such as repairs, reading meters, or inspections with prospective buyers or tenants, and after timely announcement. A few days' notice is usual.
„I want to be more involved.“
We often hear this wish from investors who would rather let a flat themselves than buy an operator concept. As a landlord, you can actually have a say. But the rental agreement sets the limits, and only to the extent that its clauses are valid.
05Waiver of Notice to Terminate, Graduated and Index-Linked Rent
Three clauses bring predictability if they are formulated correctly.
Waiver of notice to terminate. An indefinite rental agreement can be terminated by the tenant at any time with three months' notice (§ 573c BGB). If you want more predictability, both parties can waive the ordinary termination for a certain time. In a standard form contract, this holds for a maximum of four years, calculated from the conclusion of the contract (BGH, ruling dated 06.04.2005, VIII ZR 27/04). If the period is longer, the waiver is dropped entirely. A waiver only by the tenant is invalid outside of a graduated rent.
Graduated rent. The future rents are fixed from the beginning, each step must apply for at least one year and be stated in the contract as an amount in euros (§ 557a BGB). During the graduation, other rent increases are excluded.
Index-linked rent. The rent follows the consumer price index for Germany published by the Federal Statistical Office (§ 557b BGB). Adjustment is made upon declaration in text form, at most once a year. A government draft (BT-Drs. 21/6807) provides for a cap on strong index jumps for areas with a tense housing market; as of 13.10.2026, it has not been passed.
FAQHäufige Fragen
What happens if a clause in a tenancy agreement is invalid?
The clause drops out without replacement and the rest of the agreement remains valid. The statutory rule applies instead. An invalid clause is not reduced to the maximum that would still be permissible.
Is a general ban on pets in a tenancy agreement valid?
No, at least not for dogs and cats in a standard-form contract (BGH VIII ZR 168/12). A clause requiring the landlord's consent, decided case by case, is valid. Tenants may keep small animals in usual numbers without permission.
How high may the minor repairs clause be?
There is no statutory maximum. Lower courts usually accept €100 to €120 per repair, sometimes €150, plus an annual cap of 6 to 8 % of the annual net rent. If either cap is missing, the clause is invalid.
How long may a waiver of the right to give notice last?
In a standard-form contract no more than four years from signing, and the waiver must apply to both parties. If it is longer, it is invalid in its entirety.
May the landlord view the flat at any time?
No. They need a specific reason, such as a repair, reading meters or a sale, and must announce the appointment in good time. A clause allowing access at any time is invalid.
Can the landlord prohibit subletting in the tenancy agreement?
They can refuse to let the tenant hand over the whole flat. For part of the flat, a tenant with a legitimate interest arising after signing has a statutory right to permission. The agreement cannot exclude this right.
Do the clauses of an old tenancy agreement continue to apply after a purchase?
Yes. The buyer steps into the existing tenancy agreement (§ 566 BGB), with all valid and invalid clauses. The agreement can only be changed together with the tenant.