Withholding or Returning the Kaution: Landlords 2026

What does "withholding the Kaution" mean?

The Kaution (security deposit) protects the landlord against claims arising from the tenancy. After move-out it must in principle be returned – you may only withhold it to the extent that you still hold a valid claim against the tenant. There is no fixed statutory return deadline; case law grants you a reasonable Prüffrist (inspection period) of usually three to six months from when the flat is handed back.

The basic Kaution rules (§ 551 BGB)

§ 551 BGB governs the amount and the holding of the Kaution:

• Maximum: at most three times the Nettokaltmiete (net cold rent, excluding operating costs shown as a flat rate or advance payment).
• Instalments: the tenant may pay in three equal monthly instalments; the first is due at the start of the tenancy.
• Holding: you must hold the Kaution separately from your private assets, insolvency-proof and interest-bearing. The interest belongs to the tenant.

Important: You may only withhold the part of the Kaution for which you can name a concrete, valid claim. A blanket or precautionary retention "just in case" is not covered by the law – the undisputed remainder must be paid out within the Prüffrist.

Which deductions are allowed?

Three types of claim justify a deduction:

1. Unpaid rent – rent arrears up to the end of the tenancy.
2. Damage beyond normal wear – damage caused by and attributable to the tenant. Normale Abnutzung (normal wear and tear: yellowed walls, walking marks, a usual number of drill holes) is covered by the rent and is not a ground for deduction.
3. Unpaid Nebenkosten – an established back-payment, plus a reasonable retention for a Nebenkostenabrechnung still pending.

Retaining for the Nebenkostenabrechnung

If the Nebenkostenabrechnung is still open at move-out, you may withhold a reasonable portion of the Kaution where you justifiably expect a back-payment (BGH, judgment of 18.01.2006 – VIII ZR 71/05). The benchmark is the expected size of the back-payment, not the full Kaution. Once the statement is ready, you settle and pay out the remainder.

Step by step: settling the Kaution correctly

1. Take back the flat – record its condition in the Übergabeprotokoll (handover inspection record).
2. Determine your claims – unpaid rent, damage, expected Nebenkostennachzahlung.
3. Pay out the undisputed part – within the Prüffrist (3–6 months).
4. Justify each retention – name every deduction in writing and traceably.
5. After the Nebenkostenabrechnung – pay out the remaining balance with interest.

Allowed vs. not allowed

Allowed retention	No retention
Rent arrears	Normale Abnutzung (faded paint, walking marks)
Tenant-caused damage	Ordinary wear of carpet/flooring
Established Nebenkostennachzahlung	Renovation without a valid clause
Reasonable part for a pending Abrechnung	Blanket retention "to be safe"

Common mistakes

• Retaining the whole Kaution until the Nebenkostenabrechnung, instead of only a reasonable portion.
• Charging normale Abnutzung as damage.
• Not paying out the undisputed part within the Prüffrist.
• Forgetting interest – it belongs to the tenant (§ 551 Abs. 3 BGB).
• Not justifying deductions in writing.

With HausMaus it's simpler

HausMaus tracks the Kaution per tenancy and walks you through the return step by step. You record the deposit amount, log the justified deductions at move-out – unpaid rent, damage, an expected Nebenkostennachzahlung – and HausMaus produces a clear deposit settlement. That way you pay out the right amount on time and keep back only what you can actually document.