Some call it an exit inspection; others call it a check-out inventory. In any case, it is highly recommended to perform a check-out inventory at the end of the rental, according to guichet.lu. But there is no obligation by the parties to do it.
What are the risks for the landlord and the tenant if they don’t conduct a check-out inventory?
“If the tenant leaves the flat without a check-out inventory and the landlord decides to smash the walls, the tenant is then presumed responsible,” said , counsel at DSM Avocats à la Cour during an interview on 22 August 2024. He therefore stressed that the check-out inventory is as important as the check-in inventory.
, partner at Elvinger Hoss Prussen, noted in an interview on 27 August 2024 that parties could agree on a “tacit check-out inventory” whereby the landlord confirms that “everything is ok” when the keys are returned. To protect themself against future liabilities, the tenant should have a witness or a written confirmation from the landlord.
The best is to do [the check-out] the last day of the rental contract.
Whenever there is a litigation between the tenant and the landlord, the court will use photos and testimonies when there are no written check-in inventories. However, “the conclusive force of these testimonies is relatively weak,” remarked Martin. A party may claim that photos have been photoshopped or have been taken in a different place.
Martin suggested that involving a bailiff ensures an almost certain objectivity. “Everything that the bailiff writes in its statement can be trusted until proven otherwise.”
Who must be present during the check-out?
It is generally the landlord and the tenant or their representatives.
When should the check-out be done?
“The best is to do it the last day of the rental contract.” Martin explained that even if the tenant returns the keys on the 15th, the latter is entitled, in theory, to the possession of the flat and is responsible for the damages that could take place until the end of the month.
He admitted that damages could still, in theory, happen after returning the keys on the 31st early in the day, yet he thinks it would be easier to prove the bad faith of the landlord in that case.
Martin noted that the flat must be returned, as per the check-in, while accounting for wear and tear degradations and the end of the life/life cycles or in good condition (en bon état de réparations locatives) in cases when no check-in inventory was executed. In the latter case, “article 1731 of the civil code creates a presumption that the tenant has received the rented premises in a ‘good condition’, which means that, in case they are unable to prove that the damages already existed before the beginning of the lease, they will have to pay for them.” He added that the tenant cannot suggest on the last day that they will come back the week after to make the repairs without the approval, in principal, of the landlord. He reminded that : “according to the law, necessary repairs must have been executed, at the latest, when the tenant has returned the flat.”
Yet Nickels suggested a practical approach, “a sort of evolutive check-out process,” where an initial check-out inventory is executed 15 days before the end of the month with the landlord, for instance, which is complemented with a final visit on the last day of the month. “I think that the landlord will be in a difficult position to plead his case before a judge should he is not giving enough time to the tenant to make the necessary repairs.”
Nickels suggested that an acceptable alternative would be for the landlord to stick to the last day of the month but allow the tenant to make the repairs within the next one or two weeks. He believes that a court would side with a tenant to give them some time to make the repairs.
However, Nickels stressed that the tenant should not wait until the last day before making repairs or informing the landlord about the need to execute repairs.
Nickels commented that a rejection by the landlord without motives for an initial check-out inventory executed 15 days before the end of the month may play against him in a court case should he request missing revenues from the new tenant on the back of repairs that could have been done before the move of the new tenant. “It is all about acting in good faith on both sides.”
Can the landlord charge a fee to the tenant for the check-out?
“No. It is illegal even if it is in the rental contract.” Martin noted that the “modified” law of 21 September 2006 has enumerated charges to be paid by the tenant. It must be related to energy consumption, the maintenance cost for the flat and the common areas, small repairs and taxes related to the usage of the building. Check-out fees or property taxes are therefore excluded. The answer is the same when the landlord has outsourced the work to a third party.