Deposit not returned: anyone who waits months for their money after moving out is, as a rule, entitled to repayment, because the rental deposit (Mietkaution) under § 551 BGB is merely a security for the duration of the tenancy and not additional income for the landlord. Once the tenancy has ended and there are no justified counterclaims, the landlord must repay the deposit together with any accrued interest within a reasonable period.
In practice, however, landlords frequently rely on alleged damage, outstanding service charges or cosmetic repairs in order to delay repayment or refuse it altogether. This guide explains which deadlines apply, when withholding is actually permitted and how tenants can enforce their claim in court if necessary.
Legal basis: the deposit as security, not as a reserve for the landlord
Under § 551 subsection 1 BGB, the deposit (Kaution) may not exceed three times the monthly rent excluding operating costs shown as a flat rate or advance payment, that is, as a rule, three times the net rent excluding heating (Nettokaltmiete), and the tenant may pay it in three equal monthly instalments (§ 551 subsection 2 BGB). It serves exclusively to secure the landlord's claims arising from the tenancy, such as unpaid rent, additional payments for operating costs or damages for damage to the flat.
The tenant's claim to repayment follows from the tenancy agreement itself, because the deposit is a security held in trust. If it is established at the end of the tenancy that no secured claims remain, the purpose of the security no longer applies and the retained amount must be paid out.
How long may the landlord withhold the deposit?
The law does not specify a fixed repayment period. According to case law, however, the landlord is only entitled to a reasonable period for examination and consideration (Prüf- und Überlegungsfrist), within which he may clarify whether any claims against the tenant remain.
It is important to distinguish this from the deadline for the statement of operating costs (Betriebskostenabrechnung): under § 556 subsection 3 BGB, the landlord must account for operating costs within twelve months of the end of the accounting period. Until this deadline has expired, he may retain a reasonable part of the deposit if an additional payment is to be expected (BGH, judgment of 18.01.2006, VIII ZR 71/05).
When may the landlord withhold all or part of the deposit?
Withholding is only permitted if there are actually still outstanding, justified claims against the tenant. Typical permissible reasons are:
- Rent arrears or unpaid service charges from the period before moving out
- A statement of operating costs not yet prepared, with an additional payment to be expected
- Demonstrable damage to the rented property going beyond normal wear and tear
- Cosmetic repairs (Schönheitsreparaturen) that were validly agreed and are actually owed
According to the case law of the Federal Court of Justice, many clauses on rigid renovation intervals or pro-rata compensation clauses (Quotenabgeltungsklauseln) in standard-form tenancy agreements are invalid. If the landlord relies solely on such an invalid clause, there is as a rule no claim to cosmetic repairs and therefore no right to withhold the deposit on that account.
What to do if the landlord does not pay? Setting a deadline and sending a reminder
If the landlord does not respond after the reasonable examination period has expired, the tenant should set a specific deadline for payment in writing, for example two weeks from receipt of the letter. The letter should state the exact amount and refer to the waiting time so far.
If this deadline expires without result, the landlord is in default (Verzug) pursuant to § 286 BGB. From that point, the tenant may additionally claim default interest at five percentage points above the base rate (§ 288 subsection 1 BGB) as well as the costs of further reminders or of a lawyer. The letter setting a payment deadline is itself the formal reminder (Mahnung); the tenant generally bears the costs of this first letter himself.
Action for repayment of the deposit
If payment is still not made despite the deadline, the tenant can enforce the claim in court. One option is court summary proceedings for a payment order (gerichtliches Mahnverfahren) under §§ 688 et seq. ZPO, which, for undisputed claims, can lead more quickly and cheaply to an enforceable title; alternatively, an action can be brought directly before the competent local court (Amtsgericht).
For disputes arising from residential tenancies, the local court at the location of the flat has exclusive jurisdiction regardless of the amount in dispute. The costs of the proceedings depend on the value in dispute (Streitwert), that is, the amount of the deposit claimed, so that the financial outlay can usually be estimated well in advance.
Typical mistakes and practical tips
Many tenants wait too long because they are unsure from when they may take action, or they forgo a handover report to avoid conflict. Both considerably weaken their own position, because without documentation of the condition of the flat on moving out, it is difficult to refute later claims by the landlord of alleged damage.
Another common mistake is to accept a blanket, unverifiable statement from the landlord. Tenants are entitled to a comprehensible breakdown of which amounts are being withheld and for what reason, and can have this reviewed by a court if in doubt.
Limitation of the claim to repayment of the deposit
The claim to repayment of the deposit is also subject to the regular limitation period (Verjährungsfrist) of three years under § 195 BGB. Under § 199 subsection 1 BGB, the period begins at the end of the year in which the claim arose and the tenant became aware, or should have become aware, of the circumstances giving rise to the claim.
Anyone who waits too long risks not only problems of proof but, in the worst case, the complete loss of the claim through limitation.
In practical terms, this means: if the repayment claim falls due after the examination period has expired, for example in the autumn of a year, the three-year period begins at the end of 31 December of that year and ends three years later. For a part retained on account of operating costs, the period may begin later. To be on the safe side, tenants should assume the year in which they moved out and take action in good time, if necessary through measures that suspend limitation, such as a payment order (Mahnbescheid).