(Germany) Repairs at end of rental contract for pre-existing issues: who has burden of proof?

Question

I recently moved to a new apartment, and cancelled the contract for my previous apartment where I had lived for several years. The contract for the old apartment had a three month notice period, so I found a replacement tenant for the landlord to avoid paying rent on both places for that time. On moving in, the new tenant found some areas needing a little work. He has contacted the landlord, who has now asked me to resolve these issues or have the cost of doing so taken from my deposit. Some of these issues are fair complaints and I'm working with the new tenant to resolve them quickly. So far so good.

The problem: Some issues date from before I moved in, but the landlord is now demanding I resolve them at my own cost. When I moved in, I signed the contract (which is the standard and well-known in Germany "Hamburger Mietvertrag für Wohnraum") at the landlord's office and received the keys directly. There was no official handover appointment where the state of the apartment was inspected, and I failed to photograph or otherwise document these issues at the time.

I understand that the real problem here is my failure to document these issues on moving in (it was my first time renting my own place and I was naive). I'm fortunate enough to have a good job and ultimately I'll be fine even if I do have to pay these costs. But on principle I'm obviously not keen to pay for work handling issues from before I first rented the place, and now I'm also just plain curious who actually has the burden of proof in any dispute like this.

tl;dr: Where does a tenant stand if their ex-landlord deducts costs for pre-existing issues from my deposit? The contract states the apartment condition as "renovated" at the time of moving in. Will the tenant find they have to pay for resolving pre-existing issues because they failed to document them at the time, or can they demand the landlord prove the issues were not pre-existing?

In case it's relevant, there are a few little things but the primary issue is about the paint on two walls of the living room - the walls can't be painted evenly as they are unplastered and have a very uneven texture (very porous in some places, relatively smooth in others). The landlord now expects me to pay to plaster the wall.

Answer 1

australia

A tenant must return the property in the state it was given subject to fair wear and tear

Fair wear and tear represents the deterioration that occurs in normal use - so it includes wear on a carpet from walking on it but not wear from having a horse walk on it (unless you’re renting a stable but who puts carpet in a stable?)

If the wall is in the condition that it was given to you but for the normal deterioration over time, then you are not liable to fix it.

As for who has the onus of proof, since the landlord is the one claiming the entitlement, they have to prove it. However, the burden is only the balance of probabilities.

So, if there is a fist shaped hole in the plaster wall and there is no evidence it was there when the tenant moved in, then, it’s more likely than not that it happened on the tenant’s watch and they have to fix it. Because putting fists through walls is something that residents are more likely to do than landlords.

However, if there is a painted wall and the initial application of the paint is defective, then absent evidence that the tenant painted the wall, it’s more likely than not that the landlord did it. Because painting walls is something landlords are more likely to do than residents.