Explanation of Article 433
The article stipulates the tenant's obligation for maintenance that customarily falls under the tenant's responsibilities, such as minor maintenance of household sanitary tools, water taps, air conditioning units, lighting, locks, keys, and similar items. The tenant is obliged to carry out maintenance as dictated by custom, even if it is proven to result from normal use. However, the tenant can be relieved of this obligation if it is proven that the maintenance is due to force majeure or a defect in the leased property, in which case the landlord is responsible, as it is necessary for the enjoyment of the leased property.
Reference is made to the explanation of Article (419), which distinguishes between "routine maintenance" and "necessary repairs." Routine maintenance refers to minor repairs required by the normal use of the leased property, determined by custom, and is the tenant's responsibility. Necessary repairs are essential for keeping the leased property fit for use, including repairs needed to preserve the leased property and those necessary for its use, and these are the landlord's responsibility.
If there is doubt about whether a type of work is routine maintenance, which the tenant is responsible for, or necessary repairs, which the landlord is responsible for, the doubt is interpreted in favor of the tenant. The default is that the landlord performs everything necessary to keep the leased property fit for use, except for routine maintenance, as it is minor and borne by the tenant; thus, routine maintenance is an exception, and exceptions are not expanded upon.
If the tenant fails to perform routine maintenance of the leased property, general rules on breach of obligation apply. The landlord may request specific performance or contract termination, and the court may assess the termination request, which is rarely accepted, as failure to perform this maintenance usually does not cause harm to the landlord justifying termination. The harm is typically on the tenant for not fully enjoying the leased property. The landlord may always seek compensation for damages caused by the tenant's breach of obligation, including maintenance costs if the tenant does not perform them, and any damage to the leased property due to untimely execution. The tenant cannot reclaim the compensation amount even if it is proven that the landlord did not use it for maintenance after the lease ended, as there may be no need for it.
The end of the article clarifies that the tenant's obligation for routine maintenance is not a matter of public order; it is permissible to agree to reduce this responsibility by exempting the tenant from routine maintenance if it results from normal use, for example, or by exempting them entirely, even if it arises from their fault. However, the exemption should not cover cases of fraud or gross negligence. It is also permissible to agree that the tenant bears routine maintenance even if it arises from force majeure.
What the article contains is merely an application of the general rules established in Articles (173) and (174), allowing for the modification of contractual liability provisions except in cases of fraud or gross negligence.
In applying this condition, if there is doubt in interpreting the exemption clause from the tenant's obligation for routine maintenance, or in interpreting the clause reducing or increasing this obligation, the doubt is interpreted in favor of the party bearing the burden of this condition, in accordance with Article (104). In cases of exemption or reduction, the doubt is interpreted in favor of the landlord, and in cases of increase, it is interpreted in favor of the tenant.
Related To
Article 433
The lessee shall, during the term of the lease, maintain the leased thing according to custom, unless agreed otherwise.