Calling all TT rental contract gurus!!
A friend of mine moved into an apartment not long ago, She was in a situation where she needed to move at short notice and was having difficulties finding a place.
Eventually she found a place that she thought was OK, The Landlady seemed fine and was very sympathetic to her cause.
So, My friend agreed to take the place... Got out of her old flat pronto, and was told by the new landlady that she could move in Immediately as the flat was vacant..
On the Day that she moved, the landlady sat there in he middle of it all and started to go through the rental contract with her, ( Up till now it had all been verbally agreed)
Now Here is the problem...
My friend wants to leave this flat, It just dosent suit her needs both work and social.
She Handed in her letter of contract termination and got the a reply that she certainly wasnt expecting!
The Landlady has stated that she can not Terminate the contract until 2010... Unless she finds a "Nach-mieter" (sp?)
Now on the front page of the contract it states that the Cancellation notice required is 3 months! This is Highlighted in Bold Text!
Further into the contract, it is indeed written that she has contracted the rental of this flat until 2010... This is not highlighted!
OK... Its her fault that she didnt scour every single detail, but I must admit that you do tend to read the Highlighted areas of a contract.
The question is...
Is this normal and acceptable practice for a contract to conflicting detail?
I know everyone will shout " Meitverein" She will call them at a later stage... but now it looks like she is stuck there!
Any useful advice greatly welcomed.
Thanks folk
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Contradictory notice periods on rental contracts
Three years, or three months with a "Nachmieter"
Not Mieterverein, lawyer. This landlady, if it is the same one, is a scumbag thieving bitch and needs to be slapped down hard.
P.S. Fax me the contract and I'll look at it.
P.S. Fax me the contract and I'll look at it.
my rental contract is similar, but of course before i signed it they told me i am signing a 3-year lease, but it also states, according to the law, i can move out under certain circumstances (married, unemployment, pregnancy) and then i am not held to the 3 years, just need to give 3 months notice. if i want to move out for any other reason, the landlord can let me out of my contract if he or she wants then I'd have to find a Nachmieter.
I am about sign a rental contract for a wohnung and find that the contract is unlimited and seems to provide no exit option in the first three years. I have a couple of questions:
a) What does this mean - as per below contract, under what circumstances can I get out of this contract (does my obligation end if I can find someone who can take over my contract i.e. a nachmieter?)
b) How inclined are German landlords to negotiate this (mine will be a company which owns hundreds of apartments and rents them out - I assume they have this kind of clause on all their contracts).
c) What change should I ask for to protect myself (I may be around for 3 years but I still want the security of being able to leave when I want to - My previous contract could be terminated at any time with a 3 month kundigung).
I know I am seeking free legal advise here, but any good advice would be welcome!
See below the clause (minus the umlauts):
Topics merged by admin
a) What does this mean - as per below contract, under what circumstances can I get out of this contract (does my obligation end if I can find someone who can take over my contract i.e. a nachmieter?)
b) How inclined are German landlords to negotiate this (mine will be a company which owns hundreds of apartments and rents them out - I assume they have this kind of clause on all their contracts).
c) What change should I ask for to protect myself (I may be around for 3 years but I still want the security of being able to leave when I want to - My previous contract could be terminated at any time with a 3 month kundigung).
I know I am seeking free legal advise here, but any good advice would be welcome!
See below the clause (minus the umlauts):
QUOTE
1. Es ist unbefristet und laueft unbestimmte Zeit. Die ersten drei Jahre ist die ordentliche Kuendigung fuer Mieter und Vermieter ausgeschlossen. Nicht ausgeschlossen ist die Moeglichkeit von Mieterhoehungen
2. Anschliessend ist das Mietverhaeltnis mit gesetzlicher Frist Kuendbar.
3. Die Kuendigung, die der schriftform bedarf, muss dem anderen Vertragsteil bis zum dritter werktag des ersten Monats der Kuendigungsfrist zugegangen sein. Hausmeister sind zur Entgegennahme von Kuendigungen nicht berechtigt. Eine Kuendigung des Mieters wird erst wirksam, wenn sie beim Vermieter eingeht.
4. Setzt der Mieter den Gebrauch der Mietsache nach Ablauf der Mietzeit fort, so gilt das Mietverhaeltnis nicht als verlaengert. BGB findet keine Anwendung. Der Mieter schuldet Nutzungsentgang in Hoehe der bisherigen Gesamtmiete. Der auf die Betriebskostenvorauszahlung entfallende Anteil wird entsprechend abgerechnet.
2. Anschliessend ist das Mietverhaeltnis mit gesetzlicher Frist Kuendbar.
3. Die Kuendigung, die der schriftform bedarf, muss dem anderen Vertragsteil bis zum dritter werktag des ersten Monats der Kuendigungsfrist zugegangen sein. Hausmeister sind zur Entgegennahme von Kuendigungen nicht berechtigt. Eine Kuendigung des Mieters wird erst wirksam, wenn sie beim Vermieter eingeht.
4. Setzt der Mieter den Gebrauch der Mietsache nach Ablauf der Mietzeit fort, so gilt das Mietverhaeltnis nicht als verlaengert. BGB findet keine Anwendung. Der Mieter schuldet Nutzungsentgang in Hoehe der bisherigen Gesamtmiete. Der auf die Betriebskostenvorauszahlung entfallende Anteil wird entsprechend abgerechnet.
Topics merged by admin
Acoording to the BGH (Bundesgerichtshof) they could even put a no-exit option for the first 4 years into the contract. So you will have to find an acceptable Nachmieter if you want to get out within the first 3 years and 3 months.
Panda is right. Naturally the landlor my rejeft the Nachmieter. AFIK these is a clause, after x amount of Nachmieters presented you have the right to move out anyhow. But you would need to consulkt somebody like:
http://www.mieterbund.de/
http://www.mieterbund.de/
3 months is now the legal cancellation time.Bog standard a the moment
My advice after 25 years in the legal profession: Don't sign. The landlord must have made this contract up himself, run it past a lawyer and have him pick out the legal clauses - easier than listing the illegal ones. And keep looking.
S.B. as far as i know you could sign the contract even if its illegal.Live there and then when you want to move get a lawyer on the job win and make them pay for the costs as well.
Thanks Mik and Sarabyrd. I am planning to take the contract tomorrow morning to the Munich Mietverein near stachus and see if they can check it out for me. i think i am supposed to first become a member of the mietverein. Is it true they dont check out contracts and stuff for the first three months of your membership? If they wont do it, i would have to go to a lawyer. Not sure how much a lawyer would charge to mark up 5-6 page contract.
Sounds a bit strange as you said that your landlord will be a company? I could understand the odd 'dodgy' landlord getting you to sign an illegal contract. But a company? They'd have been sued many times (to bankruptcy) if it is illegal. Unless it is a disreputable.
From the English section of Mieterverein München
From the English section of Mieterverein München
QUOTE
Are there different types of tenancy agreements?
A property or flat can be rented for a fixed term or a periodic tenancy. Most homes are rented as periodic tenancies. This means that a notice to end the tenancy must be given by the landlord or the tenant. For the landlord to end the tenancy, he has to have clearly specified reasons. A fixed term tenancy is for a specified time period (e.g. 3 years) and cannot be terminated before, unless both parties agree, or there are special exceptions. Since Sept. 1st 2001, it is only possible to set a fixed tenancy if the contract already specifies the reason for the time limit (e.g. personal use).
A property or flat can be rented for a fixed term or a periodic tenancy. Most homes are rented as periodic tenancies. This means that a notice to end the tenancy must be given by the landlord or the tenant. For the landlord to end the tenancy, he has to have clearly specified reasons. A fixed term tenancy is for a specified time period (e.g. 3 years) and cannot be terminated before, unless both parties agree, or there are special exceptions. Since Sept. 1st 2001, it is only possible to set a fixed tenancy if the contract already specifies the reason for the time limit (e.g. personal use).
Jay: It is indeed a company with hundreds of apartments rented out in Bavaria. I dont know for sure if this is really illegal though some here on TT are saying it may be.
Okay...here is what the Mietverein had to say on this:
What the owner is trying to do here is not illegal. While it is indeed illegal to have a fixed term contract without a reason as some of you pointed out here, since the first line in the clause says it is an unlimited term contract, it is not a fixed term contract. So, even though the contract is unlimited in term, only the right to terminate is not available for both parties in the first three years. While this may mean the same thing as a fixed term contract practically speaking, apparently this is not illegal.
Of course, the Mietverein advised me to request the owner to remove clause for obvious reasons and keep the contract unlimited with right to terminate with 3 months notice.
What the owner is trying to do here is not illegal. While it is indeed illegal to have a fixed term contract without a reason as some of you pointed out here, since the first line in the clause says it is an unlimited term contract, it is not a fixed term contract. So, even though the contract is unlimited in term, only the right to terminate is not available for both parties in the first three years. While this may mean the same thing as a fixed term contract practically speaking, apparently this is not illegal.
Of course, the Mietverein advised me to request the owner to remove clause for obvious reasons and keep the contract unlimited with right to terminate with 3 months notice.
Just out of interest (and probably others who have rental agreement disputes and come across this discussion), did you have to pay for your advice from the Mieterverien? Or did they provide it freely?
I had to join the mietverein first this morning and so I paid a one time registration charge of €15 and the yearly fees of €62. I told the receptionist I needed to get a new rental contract checked out and since I was in a hurry, she got me a termine to discuss the contract with an adviser (lawyer?) the same evening. Apparently, if you join beyond June (i.e. after the half year), you only pay half the yearly fee. Also, you have to give your bank details authorizing debit for the next year's fees. If you dont want to continue your membership next year, I think you have to give them a notice by end of September.
Hello Mr. NewandLost,
I understand your contract as we had the same terms and conditions in our contract. Our landlord agreed to waive off the minimum 3 years contract after we spoke to him and convinced him. Were you successful?
Sunita
I understand your contract as we had the same terms and conditions in our contract. Our landlord agreed to waive off the minimum 3 years contract after we spoke to him and convinced him. Were you successful?
Sunita
I have one more related query here: We have still not signed the contract. I asked a german colleague knowledgible in these matters today and he told me that even if the contract says 'kundigungrechts ist geschlossen' this clause does not apply if I have a genuine reason for the move, like your employer asking you to move out of the city or country. Is this really true, that if I have a genuine reason for the move like my employer transferring me out of Munich, I dont violate the contract?
Your German colleague is right. You can violate your house contract if you show evidence or proof of a move to another city or country at any point of time. I had a three years fixed contract with my landlord but leaving Bonn and moving to Munich helped me to overcome my 3 years stipulated rent contract.
Hope this helps!
Hope this helps!
NewAndLost, you would still have to find an acceptable Nachmieter if you wanted to move out before the 3-year period because of change of workplace. This is what the Mieterbund e.V. (parent organisation of Mietervereine) says: "Nachmieter"
Your contract is not a Zeitmietvertrag (fixed term rental), as there need to be stated specific reasons for termination, but a "Vertrag mit Kündigungsausschluss" (contract with exclusion of cancellation for a certain period of time). It is possible to get out of the contract if the landlord agrees or if there is a clause that allows you to provide a Nachmieter or for a number of reasons for which you need to move and having to pay the rent till end of contract would be hardship.
QUOTE
Wollen Mieter in diesen Fällen vor Ablauf der Mietzeit ausziehen, müssen sie versuchen, einen Nachmieter zu stellen. Einen Anspruch darauf haben sie, so der Deutsche Mieterbund (DMB), aber nur, wenn der Vermieter einverstanden ist oder wenn im Mietvertrag eine Nachmieter- oder Ersatzmieterklausel vereinbart wurde. Einen Nachmieter darf der Mieter auch stellen, wenn ein Härtefall vorliegt, der den Anspruch auf vorzeitige Aufhebung des Mietvertrages rechtfertigt. Die Gerichte akzeptieren als Härtegrund beispielsweise, wenn der Mieter aufgrund einer schweren Erkrankung in ein Alters- oder Pflegeheim ziehen muss. Auch wenn der Mieter wegen eines berufsbedingten Wohnortwechsels umziehen muss oder wenn sich Familiennachwuchs ankündigt bzw. der Mieter heiraten will und die bisherige Wohnung objektiv zu klein ist, liegt ein Härtegrund vor.
Your contract is not a Zeitmietvertrag (fixed term rental), as there need to be stated specific reasons for termination, but a "Vertrag mit Kündigungsausschluss" (contract with exclusion of cancellation for a certain period of time). It is possible to get out of the contract if the landlord agrees or if there is a clause that allows you to provide a Nachmieter or for a number of reasons for which you need to move and having to pay the rent till end of contract would be hardship.
Thanks Buettner and RainyDays. I am more confused since both of you cant be right!
Does the above mean that there has to be an explicit clause that allows a Nachmieter?
What are some of the 'number of reasons for which you need to move and having to pay the rent till end of contract would be hardship?
QUOTE (RainyDays @ Jun 21 2008, 11:39 am) 
if there is a clause that allows you to provide a Nachmieter or for a number of reasons for which you need to move and having to pay the rent till end of contract would be hardship.
Does the above mean that there has to be an explicit clause that allows a Nachmieter?
What are some of the 'number of reasons for which you need to move and having to pay the rent till end of contract would be hardship?
QUOTE (NewAndLost @ Jun 21 2008, 7:18 pm)
What are some of the 'number of reasons for which you need to move and having to pay the rent till end of contract would be hardship?
I should think it would be things like serious illness or disability (e.g. tenant no longer able to climb four floors in a house without a lift), radical change in financial circumstances (divorce, death of main breadwinner), etc. Don't quote me, though, I don't know whether it applies in German rental law.
Sorry if my summary of the German text in post #19 wasn't clear. There are three alternative possibilities to get out of a fixed term rental contract/contract with exclusion of cancellation prematurely:
1) The landlord allows the tenant to simply end the contract
2) There is a clause in the contract that allows to provide an acceptable Nachmieter if the tenant wants to move out for whatever reason
3) The tenant has to move out because of change of workplace, need to live in a pensioners or nursing home, marriage, pregnancy (valid reasons according to court decisions). In this case, the tenant is still obliged to find a Nachmieter that is able to pay the rent and willing to take over the contract without delay.
1) The landlord allows the tenant to simply end the contract
2) There is a clause in the contract that allows to provide an acceptable Nachmieter if the tenant wants to move out for whatever reason
3) The tenant has to move out because of change of workplace, need to live in a pensioners or nursing home, marriage, pregnancy (valid reasons according to court decisions). In this case, the tenant is still obliged to find a Nachmieter that is able to pay the rent and willing to take over the contract without delay.
Cool. Thanks. Really appreciate your help RainyDays. Now my task is cut out.
Hey there..
Just off on a side note.. could anyone please help me out and tell me what the responsibilites are for someone taking over a lease as a Nachmieter. I have a lease on my apartment that runs till October 31 but I need to get out now and have found someone to take on the place but they only want/need the place till the end of the contract (October 31). Now I thought this was perfect, but I have since been told by a friend that it doesn't work like that and he will have to sign up for a new full 1 year lease to get into the apartment and for me to be no longer liable.
My Hausverwaltung co. and Vermieter seem like a reasonable bunch and they agreed to letting me take on a Nachmieter, but now that I have this option I was just wondering if they can demand he sign a new full contract?
Can't he just finish out my contract?
Thanks, I would appreciate any help or advice I could get..
Just off on a side note.. could anyone please help me out and tell me what the responsibilites are for someone taking over a lease as a Nachmieter. I have a lease on my apartment that runs till October 31 but I need to get out now and have found someone to take on the place but they only want/need the place till the end of the contract (October 31). Now I thought this was perfect, but I have since been told by a friend that it doesn't work like that and he will have to sign up for a new full 1 year lease to get into the apartment and for me to be no longer liable.
My Hausverwaltung co. and Vermieter seem like a reasonable bunch and they agreed to letting me take on a Nachmieter, but now that I have this option I was just wondering if they can demand he sign a new full contract?
Can't he just finish out my contract?
Thanks, I would appreciate any help or advice I could get..
If all parties are in agreement of course you could but get it all down in writing and get your heating,water and stuff read first
Thanks for the tip, Ill see what they say.
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