General tips when renting accommodation

[sarabyrd 18,767]

The Süddeutsche Zeitung features tips for tenants every Friday, prompting me to post to old topics. However, a dedicated topic seems to be a better solution. I will add anything that seems relevant to the general questions asked under “Legal”, other contributions are, of course, welcome.

 

For your convenience, please find the topics treated in this thread in chronological order

 

Table of Contents

 

The Handover Procedure

Eviction - Your Rights as a Tenant

What to Observe When Your Apartment is Sold

Implications of Shacking Up

Heating Questions

Clearing Sidewalks and Paths of Snow and Ice

Liability for Open-Flame Candles

Wrong Flat Size and Rent Soar after Renovation

Electrical Standards in Rented Property

Deposit Cannot Be Used by Tenant for Open Rent

Rent Reduction Due to Bad Smell

No Keys, No Rent

Landlord Cannot Forbid Smoking In Rented Premises

Adjustment of Running Costs ("Betriebskosten")

Repeated Late Rent Payment Can Lead to Termination

Moving & Deposit for the New Flat

Landlord Taking Pictures After Termination

Noise And Neighbours - How Much To Accept, How To Deal With Too Much

Tenant's Lease Reduction vs Landlord's Lease Termination

"Nachmieter" - Tenant Willing to Enter Into Your Lease

Rental Agreement Must Be Signed to Become Valid

Subletting Or Letting Premises To Tourists

[sarabyrd 18,767]

The Handover Procedure

Today, we are advised to take the Wohnungsübergabe (transfer of the premises) seriously. Don’t just look at the snazzy new paint job and the freshly cleaned windows:

 

 

• Open and tilt the windows to make sure that the hinge switches over nicely, put the blinds down and check them for damages or a worn drawstring, check the doors for uneven hanging or loose handles, do the floor crawl and look for spots on the carpet or water stains and scrapes or scuff marks on the parquet.
  
• Turn each water faucet on and off, check how long it takes for hot water to kick in, flush the toilet and listen and look for any trickle that would appear on your water bill.
  
• Make sure that the light fixtures and switches work (bring your own light bulb with the connecting electrical thingy), check all the plugs (bring along a reading lamp or similar that you can plug in and turn on).
  
• If there is a kitchen, turn on every stove burner and the oven, test the settings; open the fridge and freezer. If they are switched off, turn them on first thing and come back towards the end of the handover to check how cold they are. Test the extraction fan.
  
• Test all the locks, make sure that all the keys fit – both the street door and the apartment door; if you are moving into a house check all entrances including the garden gate.
  
• Check the fuse box to see if the proper strength fuses are being used, ask when they were last replaced, ask who is responsible for buying replacements.
  
• Feel the temperature of the exposed walls and sniff the air for the telltale smell of mould remover (chlorine!).
  

 

Any damages, faulty wiring, leaking faucet or other blemish should be taken down in writing, along with any agreement regarding who is responsible for their repair. Any damage etc. that is not included in the handover record will be considered your fault, you will be charged for its repair accordingly. Also, if such damage etc. is included in the record you cannot base any reduction of your rent on it. On the other hand, the landlord cannot make you responsible for any damage not included in the record.

 

There is no legal obligation to take a written record but you can make life easier for yourself by doing so if both parties agree on the contents. If you do not want a written record bring along a witness or two with sufficient German, preferably not related to you. I.e. if you and your Significant Other are moving in and both of you sign the lease, bring along at least one more person as an independent witness. Taking pictures of any damage (with date and time stamp) is strongly advisable.

 

Do not agree to an appointment after dark! Insufficient lighting can cover a multitude of blemishes, and once the keys have been handed over you're responsible for everything. Insist on signing a receipt for the keys, even if you don't put anything else in writing.

 

Any furniture or fixtures you agree to take over from the former tenant have to be agreed on between you and him, your landlord is not involved in that transaction. However, if the former tenant has left items in the apartment such items should be catalogued in writing.

 

And from their feature “Relevant Court Verdicts”: You as the tenant are responsible for any damages caused by your helping hands. Make sure that they have liability insurance! (10 C 19/09, Amtsgericht Gummersbach).

[Beuel 4,947]

Great idea, Sarabyrd!

Though a "Übergabeprotokoll" (written record)is no legal obligation it will make things much easier. Usually landlords have a kind of prepared Übergabeprotokoll where you can write down everything. Make sure it is dated and let the landlord sign it. If you are a member of mieterbund a protokoll signed by the landlord is very helpful in case of any trouble.

[It's_Me 88]

Take photos with a date stamp on it. Especially of the floor and the doors, windows and heating.

[Mik Dickinson 443]

Hmmm only two thigs missing in that lot,very good by the way.Make sure all the readings have been taken for heating and the water meter.Also make sure that the electricity meter has been read also

[sarabyrd 18,767]

Eviction - Your Rights As A Tenant

 

It happens: Your contract doesn't get extended, a promising job falls through, no income, you can't pay your rent. Your landlord can either terminate with your regular termination period to get you out or he can immediately file for an eviction notice if you are in default with two consecutive months' rent or with the equivalent of two months' rent over a period of more than two months (relevant law §543 BGB). Another possibility leading to an eviction claim is refusing to leave the apartment after the termination period although the lease was terminated.

 

 

Räumungsklage können Vermieter immer dann erheben, wenn bei der ordentlichen Kündigung die allgemeine Kündigungsfrist oder bei der außerordentlichen Kündigung eine angemessene Frist zur Räumung ergebnislos verstrichen, der Mieter also nicht ausgezogen ist. Vor dem Ablauf der Kündigungsfrist ist eine Räumungsklage nur zulässig, wenn der Mieter klar zum Ausdruck gebracht hat, dass er die Wohnung nicht rechtzeitig räumen wird.

If such a claim is not contested the court will generally issue the notice within three months; during such period you can remain in the apartment. Even after the eviction notice has been issued the court may determine a stay on proceedings, i.e. if you are suicidal (not a good move: the court may have you committed to a psychiatric clinic), if a move would endanger your health, or if you can prove that you have a new apartment that will become available within a reasonable period; in that case, two moves within a short period of time cannot be justified.

 

However, if you remain in the apartment after termination you are still obliged to pay the rent!

 

You can avoid the hassle of court procedure if you and your landlord sign an enforceable agreement ("Räumungsvergleich"), i.e. you agree on a date by which the apartment will be vacated, after this date the landlord can enforce the agreement.

 

If the landlord has to enforce the eviction notice you are liable for all costs (moving van, helpers, storage, final cleaning etc.) as well as for any open rent payments. The landlord, on the other hand, is obliged to keep damages as low as possible (Schadensminderungspflicht), i.e. employ cheap labor and find storage with low charges.

 

Before he has the enforceable eviction notice in his hands the landlord is expressly forbidden to change the lock/s and/or remove your possessions. If he does he faces criminal charges such as unlawful entry/trespassing and coercion and can even be sued for damages resulting from his actions.

 

 

Vermieter dürfen keinesfalls eigenmächtig handeln und selbst die Wohnung ausräumen oder einfach das Türschloss austauschen. Andernfalls könne sich der Vermieter wegen Hausfriedensbruchs und Nötigung sogar strafbar machen. Zu den ausstehenden Mieten kommt dann womöglich noch eine Strafanzeige des Mieters dazu. Zudem riskiert der Vermieter Schadensersatzansprüche des Mieters (Bundesgerichtshof, Urteil vom 14. Juli 2010, VIII ZR 45/09).

So if you have problems paying the rent, talk to your landlord/house agent immediately and try to find a workable solution.

 

_{source: Süddeutsche Zeitung, no.215, Friday, 17 September 2010, page 59}

[Uncle Jamal 132]

Not sure if this aspect of the renting of a flat belongs here or whether you have any advice to give but what about Makler's offering you a deal on the Provision - i.e. pay me in cash and we'll forget the MwSt.

[sarabyrd 18,767]

Not really. That is not the kind of thing that the Süddeutsche Zeitung would hand out helpful tips about.

[sarabyrd 18,767]

Nothing special last Friday except for an interesting court decision:

 

The correct delivery of official letters can be a bone of contention in a WG, especially if there is no consensus about who retrieves the mail and how it is distributed within the apartment. In the case in question, a letter from the tax office had been delivered to a valid address but the recipient claimed that he had never received it; although he was living under the address at the time he had no key to the mailbox. The letter, he claimed, must have been stuck in a pile with various other mail items and overlooked.

 

The judge remained skeptical, saying that of all the letters that arrived an official letter made conspicuous by the proof of delivery (generally a stamped note on the envelope with a hand-written date of delivery and the delivery person's signature) is the least likely to be overlooked in such a situation. The fact that the recipient could not physically open the mailbox himself was negligible under the circumstances.

 

 

Der an ihn gerichtete Bescheid müsse wohl in einen Poststapel geraten sein, den Mitbewohner angelegt hatten. Dort sei er wohl übersehen worden. Die Richter meinten, es sei 'wenig glaubhaft, dass ausgerechnet der Haftungsbescheid in Gestalt der Postzustellungsurkunde' nicht besonders aufgefallen und in einem Stapel von Briefen verschwunden sein soll. Dass der Adressat nicht selbst auf den Briefkasten zugreifen konnte, weil er nicht im Besitz eines Schlüssels war, hielten die Richter nicht für entscheidend. (Finanzgericht Berlin-Brandenburg, Az. 6 K 9096/05

_{source: Süddeutsche Zeitung, no.221, Friday 24 September 2010 , page 45}

[sarabyrd 18,767]

What To Observe When Your Apartment Is Sold

 

First and foremost: Nothing changes. Your new landlord is bound by the rental agreement signed with the old landlord; all rights and obligations passed from old to new without any changes or amendments (Section 566 BGB - Civil Code).

 

Your new landlord may want you to sign a new rental agreement as he is not named in your current agreement. Do not sign anything without first consulting a lawyer or the Mieterverein; a new agreement may contain provisions to your disadvantage. The new landlord has no legal claim to a new agreement unless it is identical with the old one (except, of course, for his name and bank account).

 

 

'Oft will der neue Eigentümer einen neuen Mietvertrag abschließen - zum Beispiel mit der Begründung, sein Name stehe im alten Vertrag ja nicht drin. Ein neuer Vertrag ist jedoch nicht notwendig, und der neue Eigentümer kann ihn auch nicht beanspruchen', erklärt Ropertz. Jeder Mieter, der mit einer solchen Situation konfrontiert sei, solle äußerst vorsichtig sein und sich am besten fachlich beraten lassen. 'In vielen Fällen enthält ein neuer Vertrag für den Mieter ungünstigere Vertragsbedingungen.'

A propos bank account: Continue to pay the rent to your old landlord until you have received notification in writing that the new landlord is indeed the owner of the property. Request proof of ownership, e.g. a copy of the land registry, and contact your old landlord for further confirmation before changing your standing order or granting permission for a direct debit.

 

 

Solange er nicht explizit über den Eigentümerwechsel informiert ist, muss der Mieter seine Miete auch weiter an den alten Besitzer zahlen. 'Auch die schriftliche Mitteilung eines neuen Besitzers ist nicht ausreichend', warnt Thomas Hannemann, Experte für Mietrecht im Deutschen Anwaltverein in Berlin. 'Der Mieter sollte sich mindestens die Kopie des Grundbuchauszuges zeigen lassen, besser noch: die Angaben des neuen Eigentümers beim alten überprüfen.' Erst dann sollte er an den neuen Besitzer zahlen.

Another financial aspect: Do not, on any account, pay another deposit to the new landlord! The old landlord is obliged to pass on any deposits to the new one; you as the tenant are not responsible for these funds. If they are being held in a savings account you may have to co-sign for the new joint savings account in the new owner's name. Matter of fact, I would insist on doing this so that you have proof that the new landlord now holds the deposit. When you move out you will deal with the new landlord regarding the deposit, not the old one. Don't let the new one tell you anything different!

 

If your new landlord wants to move in himself, or let a member of his family move in he is allowed to terminate the lease according to the provisions set forth in the old agreement - providing that he is entered in the land registry and that he can show convincing proof that he or the family member urgently requires the premises. Merely terminating mentioning "Eigenbedarf" is not sufficient! You can refute such a termination but you then have to prove that a move would be harmful to you for such reasons as ill health or advanced age. That's another case where you want professional help.

 

However, if apartments within a building are sold off separately (Umwandlung in Eigentumswohnung) the new owner/landlord must wait at least three years, sometimes up to ten, before terminating your lease for Eigenbedarf. Not to mention that the old landlord must grant you the first bid on buying the property.

 

The rent may only be increased if a) the last increase is more than 12 months ago and the total increase over three years is not more than 20%.

 

 

Ob einfacher Verkauf oder Umwandlung: Die Miete darf der neue Vermieter bis zur ortsüblichen Vergleichsmiete erhöhen - 'allerdings nur unter zwei Voraussetzungen', sagt Ropertz. Zum einen müsse die letzte Mieterhöhung mindestens zwölf Monate zurückliegen. Zum anderen dürfe die Miete innerhalb von drei Jahren nicht mehr als 20 Prozent heraufgesetzt werden.

Last but not least, the supplementary costs (Betriebskosten) must be calculated and either claimed or refunded by the owner who is in possession at the end of the running period.

_{Eva Neumann/dpa}

_{Source: Süddeutsche Zeitung no. 227, Friday 1 October 2010 , page 63}

[sarabyrd 18,767]

It took a while but I finally found another post that belongs here.

 

Implications Of Shacking Up

 

Generally, the landlord must accept another person moving in with the tenant unless the apartment would be too full (this is something we foreigners subject to residency permits must always consider!) or if the person is unacceptable for personal reasons.

 

 

Will der Mieter einen Familienangehörigen oder Partner in die Wohnung aufnehmen, muss dies der Vermieter in der Regel gestatten. Nur wenn ein wichtiger Grund in der Person des Dritten vorliegt oder die Wohnung dann überbelegt wäre, kann er die Erlaubnis verweigern. Doch manchmal will der einziehende Partner auch in den Mietvertrag aufgenommen werden.

However, the new tenant does not have a legal right to become party to the lease. The landlord, on the other hand, cannot demand that he co-signs the lease. There are good reasons to co-sign, though, such as not being thrown out if tenant no. 1 decides to leave or – Lord forbid! – dies.

 

There are good reasons for the landlord to want the new person as a co-tenant as the new person is then liable for all obligations in the lease. Then again, if tenant no. 1 moves out tenant no. 2 can remain in the rented object indefinitely (or until the contractual end of the lease), something that the landlord may want to prevent. Should the new person want to become party to the lease the landlord has the right to demand proof of solvency. A simple amendment of the original lease is sufficient, there is no reason to create and sign a whole new lease*.

 

If the lease is signed by both tenants and one of them wants to move out both the other tenant and the landlord must release him in writing from the agreement; again, a simple amendment is sufficient.

 

 

Für die Aufnahme in den Mietvertrag genügt es, eine Eintrittsvereinbarung abzuschließen. Auch wenn ein Mieter aus dem Mietvertrag aussteigen will und sich beide Mieter sowie der Vermieter darüber einig sind, genügt eine Zusatzvereinbarung.

*Incidentally, on the same page, the SZ printed a verdict stating that merely extending the lease on an inhabited apartment does not justify a Vertragsausfertigungsgebühr (fee for extending a contract), so there should be no costs invovled when signing this amendment. But it's always a good idea to invite the landlord over for a beer.

[sarabyrd 18,767]

Heating Questions

 

Nicely coinciding with the first night frosts, this week's topic is when the heating must be turned on, and at which temperature. This answer is: It depends. There is no rule of thumb in this issue, no Generalheizperioden- und -temperaturverordnung mit Durchführungsrichtlinien.

 

If the Heizperiode (heating period) is not stipulated in your lease it is generally considered to be 1 October through 30 April. But what if it's not just subjectively cold outside that period? Various courts have handed down various opinions on when to heat. For example: If the inside temperature drops below 18°C and the cold weather is expected to last more than two days your landlord has to switch on the heating (District Court Cologne, 206 C 351/84). If the inside temperature is 16°C the same applies, regardless of how long the cold spell is supposed to last.

 

Other courts base their decisions on the outside temperature, for example if the temperature is less than 12°C for three consecutive days the heating has to be on (District Court Uelzen, WuM 86,212).

 

As to temperature, it's up for grabs. Generally, 20 to 23°C are considered standard, from 7 am through 11 pm, both for living premises and office space (Higher Regional Court Munich, 5 U 2889/00). Other arrangements can be made in your lease, but a maximum temperature of 18°C is not acceptable (County Court Heidelberg, WuM 82, 2).

 

However, different rooms can be subject to different temperatures: Living room, bedrooms and kitchen 20°C, bathroom 22°C, hallways 17°C. A decrease of temperature to 17°C or 18°C in the nighttime is acceptable.

 

Hot water is another bone of contention: 40 to 50°C after a maximum of ten seconds is standard. If the water temperature is less than 40°C the landlord must adjust the temperature; failure to do that allows the tenant to reduce the rent.

 

If the heating fails in the winter the landlord must act immediately; in emergencies the tenant may act independently and call in a plumber at the landlord's expense. This would be the case if your landlord or house management is inaccessible (hospital, vacation, business trip) or over public holidays.

 

More to rent reductions: If the standard heating temperature is not provided over a significant period of time you may reduce your rent - but only after informing the landlord in writing with a reasonable period to remedy the situation. You can deduct 15% if the maximum room temperature is 18°C (County Court Frankfurt/Main, 2/17 S 315/99), 20% if it's only 16 - 18°C (District Court Cologne). Should the heating completely fail in winter you can deduct 75 to 100% of your rent. Of course, these deductions can only be made for the period of the missing services.

 

Not only that: If the temperature is less than standard over several weeks and can only be achieved with supplemental appliances the landlord has to foot the bill for such appliances and their surplus utility costs, and the tenant has the right to terminate the lease immediately for cause (Chamber Court Berlin, 8 U 2216/97). The County Court Landshut even saw a health risk in such a case (1 S 1222/85). However, subjective evaluation of the room temperature does not permit the tenant to reduce the rent. In other words, if the temperature in your apartment is 22°C and you feel cold, put on a sweater or scrub the bathtub, it warms you up nicely.

 

The landlord cannot demand a minimum temperature of 22°C if the tenant is comfortable with 20°C; however, a minimum of 15°C can be demanded, even of tenants who prefer an unheated bedroom.

 

The tenant, on the other hand, is obliged to keep the rooms warm enough to prevent damages to the premises. Do not turn off the heat when you go home for the holidays so your pipes don't burst. Keep rooms warm enough that dampness doesn't creep into the walls and develop mould, and ventilate (I won't go down the mould route until the Süddeutsche Zeitung comes to it).

 

And today's handy verdict: If your landlord terminates your lease to use the apartment for himself or a family member and does not offer you an apartment in the same building that becomes vacant during the termination period the termination is invalid (Supreme Federal Court, VIII ZR 78/10).

 

_{source: Süddeutsche Zeitung no. 245, Friday 22 October 2010 , page 65}

[sarabyrd 18,767]

Clearing Sidewalks And Paths Of Snow And Ice

 

Basically, town hall is responsible for clearing sidewalks. However, most towns and cities have regulations making this the resident owners' (Anlieger) responsibility. House owners renting out their property in their turn pass this obligation on to either the tenants or the janitor or a commercial service (and recharge the tenants). The responsibility of clearing away the snow and spreading gravel on the path must be explicitly included in the rental agreement!

 

A causeway 100 to 120 cm wide on the sidewalks and leading to the outside garbage containers must be cleared by 7 am on working days and 8 am on Sundays and holidays and kept clear until 8 pm. Saturday is a working day!

 

If you live in a large building with several other parties your landlord can oblige you to take turns at clearing snow, ensuring that each party actually completes the task on days requiring maintenance. He can, for example, hand out a white "snow card" that you keep until you have done your duty once, then you pass it on to the next sucker who in his turn cleans once, etc. This was decided by the Higher Regional Court of Hamm 20 years ago (15 W 38/81).

 

You may be obliged to do the job repeatedly on one day, depending on the circumstances (Federal Supreme Court, VI ZR 49/89). However, if there is continuous heavy snow or freezing rain you cannot be expected to keep the paths clear and safe at all times (Higher Regional Court Celle, 9 U 220/03). If you are away from home at work you are not expected to rush home at noon and clear the snow. But if you are ill at home or on vacation you have to get a replacement.

 

If a tenant is too old or weak he cannot be expected to perform the strenuous task of clearing snow; however, the courts cannot decide unanimously who is then responsible. Some expect the tenant to find a replacement, others lay the responsibility back on the landlord. So if you are e.g. pregnant, or on crutches, or both, talk to your landlord about finding someone else to do the job, at least temporarily.

 

Make sure that you have liability insurance, possibly even makes notes of when and how you cleared your own special pathway, take pictures to document the appearance when you are done. If someone is injured he will almost certainly try to sue you for damages, such evidence can spare you sleepless nights and insurance agro.

 

A personal request: Don't be stingy with the gravel. Freshly shoveled snow can be pretty damn slippery, especially with ice underneath it; last winter when I was on crutches venturing on insufficiently maintenanced sidewalks was a complete nightmare. Thank you.

 

And today's handy verdict: If more than minor construction is planned in your building the landlord must inform you up front and with a detailed plan of when what job is being done and how long it will probably last (AG Hamburg-Blankenese, Az. 518 C 152/09).

_{source: Süddeutsche Zeitung, no. 268, Friday,19 November 2010 , page 68}

[smurf 41]

Do you have the article below in German?

 

And today's handy verdict: If more than minor construction is planned in your building the landlord must inform you up front and with a detailed plan of when what job is being done and how long it will probably last.

source: Süddeutsche Zeitung, no. 268, Friday,19 November 2010 , page 68

[sarabyrd 18,767]

 

Rechtzeitig informiert. Vermieter müssen geplante Bauarbeiten zur Modernisierung des Gebäudes früh ankündigen. Und sie müssen den Ablauf der Arbeiten detailliert darlegen. Das geht aus einem Urteil des Amtsgerichts Hamburg-Blankenese hervor, (Az. 518 C 152/09) dpa

Quelle: Süddeutsche Zeitung

Nr.268, Freitag, den 19. November 2010 , Seite 68

 

(shortened for copyright purposes)

 

EDIT:

 

P.S. You're welcome for the complete article sent via PM

[sarabyrd 18,767]

Liability for Open-flame Candles

 

Germans still have this nostalgic hankering after real candles on a real tree - sometimes posing a real danger. Should your open-flame candles cause a fire the liability question depends on just how negligent you were.

 

There is no regulation against such candles, nor a regulation demanding increased care when they are lit. Providing you exercise due caution you are not liable if a fire breaks out. However, if you are guilty of gross negligence you have to pay up. If you are not negligent, and if the building's fire insurance is recharged under your operating costs said fire insurance covers the damages.

 

Some examples of court decisions:

 

While it is not considered general knowledge that one single sparkler can make a whole Christmas tree explode into flames (Higher Regional Court Frankfurt/Main, 3 U 104/05) and does not lead to liability for a fire, permitting children to play with sparklers around a tree unsupervised, leading to a fire, is lesser degree negligence and does not justify rent reduction for the period that the apartment is not habitable (County Court Frankfurt/Main, 2-11 S 283/04).

 

Even if the candles are close to easily flammable objects and are left unsupervised you may wangle your way out:

 

- A woman who forgot the burning candles on her advent wreath due to an argument with her son was not grossly negligent (Higher Regional Court Oldenburg, 2 U 161/99).

- A woman who left the apartment for a short time with the candles burning on the Christmas tree was not considered liable as the candles were only burned down by a quarter at the time (Higher Regional Court Düsseldorf, 4 U 49/97).

- When a candle fell out of its holder while the tenant was in the bathroom she was not considered negligent and liable as she had not completely excluded all possibility of supervision (County Court Hof, 3 O 471/99).

 

Still: Be cautious with candles, especially with pets, children and dried out trees around.

 

Gratuitous tip: Only buy candles with an RAL certificate guaranteeing their quality. A quality test resulted in negative results for non-certified candles, such as releasing harmful substances, increased smut emission, not enough wax content or uneven burning qualities.

 

_{Source: Süddeutsche Zeitung no. 292, Friday 17 December 2010 , page 59}

[Quasy 318]

No more tips? I found this section really informative... and was waiting every Friday for a new post...

[sarabyrd 18,767]

The last few Fridays didn't have any topics of interest (e.g. students living with pensioners; using greenery to climatize your building, etc.); even the verdicts weren't very spectacular. I'm on this and will continue to post anything relevant when it turns up.

[Quasy 318]

Thank you in advance

This thread has cleared many questions for me until now

[Rechtsanwalt 54]

Wrong flat size & rent soar after modernisation

Consequences of mistakes by the landlord

 

You are renting a fully furnished flat lock, stock and barrel. The lease contract says the flat size is ca. 50 qm. In reality it is 11,5 % less (44,3 qm)in size. Are you allowed to reduce the rent by 11,5 %?

 

Your apartment is located at the upper floor of the building. There is no elevator- yet. The landlord embarks on a modernisation and introduces an elevator into he building. Later he elevates the lease. Is this correct even though you opposed this measure and the landlord did not properly notify what he is up to and did not announce the potential lift in lease?

 

The Bundesgerichtshof has addressed both scenarios in two recent separate court cases.

 

As for the first question, it is already known – to the dismay of many landlords- that a wrong description of the flat size in the lease contract which is beyond the 10% benchmark of the actual size constitutes a significant defect. This, in turn allows the tenant to reduce the rent accordingly. The landlord, however, was loath to accept the tenant’s right to reduced rent that stemmed from this fact of smaller-than-agreed-flat. The argument of the landlord which brought the case up to the Federal Court was simple: Since the tenant rented a comprehensively furnished flat where all furniture was already supplied, the tenant’s use of the somewhat smaller than agreed lease object was not impaired. He cannot claim he needed more space for more furniture as all the things he needs are already neatly accommodated in the flat that he rented. The Court rejected that argument. It stuck to the basic statement that a tenant is entitled to invoke a reduction in rent if the actual size is more than 10 % less than the one highlighted in the contract. The Court in an unrelated decision has shown a way out for the landlord. The landlord has to refrain from making a specific flat size part of his contractual obligation. If the landlord, therefore, clearly states that the flat size as marked out in the contract does not serve to delineate the size of the lease object. Simply putting a “ca.” sign in front of the number does not do the job.

 

- BGH, 2. März 2011 – VIII ZR 209/10 -

 

The answer to the second case is a harsh “Yes” from where the tenant is sitting and a rejoicing “Yes” as far as the landlord is concerned.

 

After a meaningful modernisation of the apartment or building, the landlord is basically entitled to transfer part of those costs onto the tenant in form of a rent increase.

 

http://www.gesetze-im-internet.de/bgb/__559.html

 

The fact that the landlord did not (or not properly) announce the modernisation work as called for in Section 554 para 3 BGB,

 

http://www.gesetze-im-internet.de/bgb/__554.html

 

is no impediment to a subsequent increase in rent.

 

The obligation to announce modernisation work is designed to allow the tenant to ready and prepare himself for the impact that the building work will have on him. Also, a timely announcement allows the tenant to exercise his special right to terminate the contract which the law provides him with as a safety valve. The Court points out the requirement to announce does not undermine the landlord’s right to follow the modernisation work with a rent increase.

 

- BGH, 2. März 2011 – VIII ZR 164/10-