General tips when renting accommodation

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"Nachmieter" - Tenant Willing to Enter Into Your Lease

 

This is not always possible.

 

 

Mietlegende (1) Drei Nachmieter und der Vertrag ist am Ende

Nein! Denn so leicht kommt der Mieter nicht aus seinem Mietvertrag heraus.

Provide your landlord with three Nachmieter and you can be released from the lease – buzzzzzzzzzzzzzzzzzzzzzzzzzzzz, wrong, urban myth! You have to stick to the clause in the lease be it an individual clause or a clause referring to current legislation.

 

 

Das Ammenmärchen trägt sich von Generation zu Generation, es wird dadurch aber nicht wahr: Stellt der Mieter drei Nachfolger vor, kann er den Vertrag ohne Fristen kündigen. Das stimmt nicht. Er muss sich an seine gesetzlichen oder vertraglichen Pflichten halten und kommt nicht an den Kündigungsfristen vorbei.

Unless there is a clause about Nachmieter in your lease you can name thousands of Nachmieter – the landlord is not legally obligated to release you.

 

 

Einzige Ausnahme von dieser Regel: Mieter und Vermieter haben im Vertrag eine so genannte Nachmieterklausel vereinbart - das allerdings ist eine Ausnahme.

There are three objective reasons for obtaining release from a lease:

 

  • The tenant has to move for work-related reasons.
  • The tenants are expecting a baby and the premises are, objectively regarded, too small.
  • The tenant is moving to a retirement home.

 

If one of the above reasons is the case, and if you have the clause regarding Nachmieter in your lease you only have to present one acceptable Nachmieter, not three. This Nachmieter has to be willing to enter into the lease “as is”. The landlord is entitled to up to three months deliberation time to check the Nachmieter’s credentials and solvency.

 

Your lease terminates when the Nachmieter is accepted. If the lease is not signed by the Nachmieter because the landlord makes even the slightest change to the current lease your lease is also considered terminated.

 

Disclaimer: I am not a lawyer. Please have all legal advice you receive here verified by a legal professional.

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In an illuminating decision by the BGH (Germany´s Federal Civil Court) dealing with the topic of „Eigenbedarf“ the BGH addressed the question whether the landlord can terminate the lease citing “Eigenbedarf” if he needs the flat that he rented to his tenants for “job purposes”.

 

Now, in lease law related to apartments – with the exception of certain special arrangements (e.g. student hostel, room with furniture within the landlord´s flat, flat within the landlord´s building with no more than two flats) terminating the contract on part of the landlord needs special justification (Section 573 BGB).

 

There are the obvious reasons for such a justification: a significant infringement of the contract by the tenant in form of damaging or endangering the lease object or failing to pay the lease itself.

 

But then there is “Eigenbedarf”. It is one word that has already produced a lot of case law dealing with the intricacies of when “Eigenbedarf” is given what claims the tenants can assert if “Eigenbeadrf” was falsely alleged. Usually the landlord has to demonstrate that the circumstances have changed in such a manner that he needs the flat for satisfying his personal needs or that of a relative. Those needs are normally related to living in the flat.

 

In the case at hand, however, the landlord argued that his wife needed the flat not for residential purposes, but because she intended to shift her law office there.

 

Whereas the district court rejected that as posing satisfying grounds falling under “Eigenbedarf”, the BGH found otherwise. According to the BGH “Eigenbedarf” can even be constituted by the desire to use the flat solely for professional reasons.

In cases of hardship the tenant can object to the termination (Section 574 BGB). The BGH remanded the case back to the lower court to examine if hardship could be invoked.

 

BGH, dated 26.09.2012 - VIII ZR 330/11

 

Section 573 BGB

http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p2145

 

Section 574 BGB

http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p2175

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Edited: Actually it was a very silly question, and out of place. I will try to find a better thread for that.

 

Thanks for all the very valuable infos here :)

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Rental Agreement Must Be Signed to Become Valid

 

After viewing an apartment a couple received a draft rental agreement along with the request to submit a Schufa-report and confirmation of their income. The happy couple went ahead and rented a garage space from a tenant in the same building, cancelled their current lease and sold their kitchen. Imagine their chagrin and rage when the landlady did not sign the lease …

 

So, after commissioning an agent to find them a new apartment double-quick and paying €3,046 for his efforts, the couple sued the non-landlady, including further expenses to the tune of €2,500. The couple's claim was that the landlady would not rent to them because the wife is in a union; the same union that the landlady had met in court some time earlier. They said that they were being discriminated against because of their ideology.

 

The judge at the Munich District Court dismissed the claim, stating that she could not identify any behavior on the non-landlady's side that could reasonably justify the impression that the lease would be signed. Even requesting the Schufa-report and confirmation of income does not ensure that the lease would be closed; obtaining this data is part of the standard procedure before deciding on a new tenant.

 

The same applies to the draft rental agreement. This does not indicate with any certainty that the lease will be closed, the prospective tenants are merely informed of the terms of the agreement.

 

 

Ebenso verhalte es sich mit der Übersendung eines Mietvertragsentwurfs: 'Auch hier wird der Vertragsschluss nicht sicher in Aussicht gestellt', sagte die Richterin, 'sondern die potenziellen Mieter werden über die Mietvertragskonditionen informiert'.

According to the judge, the union membership did not play any role in the refusal, nor had the couple provided any evidence to support this claim. Unfortunately, the Süddeutsche Zeitung did not include the case number in its article.

source: Süddeutsche Zeitung Monday 29 April 2013, page 36

 

What we ex-pats learn from this:

 

Receiving a draft rental agreement does not mean that you have the premises!

 

What else we should consider in this context:

 

The prospective landlord cannot nail you to closing the agreement!

 

What you should always ask when you receive a draft agreement:

 

Is this a draft for information purposes only, or is it a binding offer from the prospective landlord to you as a prospective tenant?

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Dear Sara, I'd like to thank you for this really helpful thread. Our new house owner has raised the rent, for all tenants, but everything else will remain as it is. It's a huge relief, because where we live it is almost impossible to find a new place for a family unless you are able to spend over a million for a house.

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It's been a while but this topic got my attention this morning as the tourist season is slowly cranking into gear.

 

Subletting Or Letting Premises To Tourists

There is a new trend among owners and tenants of apartments located in tourist hotspots: Letting or subletting their property to tourists staying anything from one night to a couple of weeks. The local authorities frown on this practice and have introduced legislation to prevent it although the chances of catching the culprit in flagranti are fairly slim. In Hamburg, Berlin and Munich the Wohnraumschutzgesetz (Act on Protection of Living Space) and the Zweckentfremdungsverbot (Prohibition of Misappropriation) were introduced to prevent the commercial use of residential premises. In spite of these laws, an estimated 15,000 apartments are being misappropriated as tourist housing in Berlin alone.

 

1) Subletting by the tenant

Subletting a complete apartment or house is subject to the landlord’s consent. This clause, generally included in the rental agreement, serves to protect the landlord’s interest in his property by ensuring that he is aware of who is living there and therefore responsible for the condition and upkeep of the property. But even if you do have this permission the Federal Supreme Court recently handed down a restrictive verdict (BGH; VIII ZR 210/13): According to the court, there is a difference between a standard sublet, covering a substantial period, and a sublet to tourists, limited to one or several days. In the court’s view, the landlord’s permission does not cover this kind of short-term sublet to a party whose center of interest and permanent dwelling are elsewhere.

 

 

So hat der Bundesgerichtshof (BGH) kürzlich entschieden, dass ein Mieter seine Wohnung nicht im Internet zur tageweisen Nutzung durch bis zu vier Touristen anbieten darf. Die tageweise Untervermietung an beliebige Touristen unterscheide sich von einer gewöhnlich auf eine gewisse Dauer angelegten Untervermietung und sei daher von der Erlaubnis des Vermieters nicht umfasst (Urteil vom 8. Januar 2014, VIII ZR 210/13).

2) “Visiting guests”

A tenant does not require the landlord’s consent to providing space for visiting guests as having visitors is considered a standard usage of the rented property. There is no strict time limitation although six weeks is considered acceptable without assuming permanent residency by the visitors, and such visits can also occur several times per year. However, according to a lawyer specializing in tenancy law, as soon as money changes hands, regardless how discreetly, a sublet contract has been agreed on.

 

 

„Wenn der Mieter von seinem Besucher aber Geld bekommt, spricht vieles dafür, dass es sich um Untermiete handelt und der Vermieter um Erlaubnis gefragt werden muss“, sagt Kai-Peter Breiholdt, Berliner Fachanwalt für Miet- und Wohnungseigentumsrecht.

3) Letting to tourists as an owner

Even if you own the residential property you are not per se permitted to let it to tourists. The two laws quoted above provide sanctions against commercially letting space considered residential. A house owner in Munich who had advertised a studio apartment via an internet platform was admonished by Social Services as the circumstances of her rental offer “are not suitable considering the demands of the general housing market in Munich”. The fine for misappropriating living space can be up to €5,000.

 

 

Vom Sozialreferat der Stadt München bekam sie deshalb ein förmliches Schreiben, in dem darauf verwiesen wurde, dass „die Umstände, unter denen die Wohnung angeboten wird, nicht geeignet sind, die Bedürfnisse des allgemeinen Wohnungsmarkts in München anzusprechen und zu decken …“.

Even if there is no law against letting your property to tourists you still face the formidable force of your neighbors. If the assembly of owners has accepted a resolution against e.g. a boarding house in the jointly owned building, or if the declaration of partition (Teilungserklärung) explicitly excludes this kind of usage you cannot line your pockets with tourist money (Higher Court Saarbrücken; 5 W 115/05; BGH V ZR 72/09). In a dissenting decision, the Bavarian Higher Court determined that using an apartment as a vacation domicile fulfills the requirements of residential usage. Unfortunately, there are no details regarding this decision, e.g. if the owner himself is using the apartment as a temporary pied-à-terre or if he is renting it to other parties.

 

But we aren’t done with the neighbors yet: Even if you sublet with your landlord’s permission, or if there is no resolution prohibiting you from using your property as tourist housing you can be financially liable for damages (financial and physical) and disturbances (noise, increased volume of garbage, dirt and untidiness) caused by your paying customers. Your neighbors are entitled to reduce their rent, and any landlord in their right mind will demand this money from you as financial damages. The Federal Supreme Court considers reasonable complaints by the neighbors sufficient without burdening them with naming an exact percentage of how each incident decreases the value of their rented premises, thus entitling them to reduce their rent (BGH; VIII ZR 155/11).

 

Then again, some local authorities are facing a home-made dilemma: Sometimes renting out tourist housing is permissible under the building permit for buildings in a residential area but not under the misappropriation laws and vice versa. There is a current case being tried at the Administrative Court of Berlin that will provide a precedent for dealing with this conflict.

 

 

Das Gericht weise ausdrücklich darauf hin, dass die Vermietung als Ferienwohnung nach dem Zweckentfremdungsrecht zulässig sein könne, nach dem Baurecht aber nicht – und umgekehrt.

Source Süddeutsche Zeitung, Friday 11 April 2014, page 49

 

What we learn from this:

- You can have guests as long as they don’t pay and also don’t occupy the whole apartment, meaning that you have to be there as well.

- If your legal sublet leads to problems in the building you can be held liable.

- The authorities are aware of this gray housing market and are trying to regulate it.

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I read this blog article recently:

 

Non-German Speaking Renters Don't Actually Need a Lawyer -- But They Do Need to Know Their Rights!

 

it has some basic tips on what to do if you are having a landlord dispute. I thought this was particularly noteworthy:

 

"Luckily, organizations exist that offer legal counsel and representation at low rates, e.g. the Mieterbund (www.mieterbund.de), which charges a tiny annual fee (typically € 36,00) and provides basic protection. They offer German-language resources in plain language. Further, there are many exceptions to the coverage offered by legal insurance (Rechtsversicherung), but for renters it can pay for itself because, in general, rental disputes are covered. For more information on my thoughts regarding legal insurance, feel free to email me at erik (at) kravets.de."

 

In Germany there are many, many laws that protect the tenant. I am a landlord in Germany and I know that if the landlord follows all the rules, they are spending A LOT of time as a landlord. I think most landlords ignore the rules most of the time. In a lot of cases, your lawyer will probably tell you to just stop paying rent. So don't wait until you are moving out to deal with issues because by then there may not be any more rent to withhold.

 

What other tips & tricks have people picked up along the way?

 

[adminmerge][/adminmerge]

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Invalid renovation/decoration clauses aka "Schönheitsreparaturen"

 

Relief for tenants with regard to the gnawing question of having to carry out “Schönheitsreparaturen” (decoration work).

 

Already there is a huge load of case law dealing with that question. Now in a bombshell the BGH (Federal Civil Court) in a spate of three rulings has dealt with two very relevant constellations bringing a huge relief to tenants.

 

To cut to the chase:

 

One, if the apartment was not handed over in a renovated condition, then the obligation to do “Schönheitsreparaturen” in standard terms of condition in the lease contract is invalid, unless the disadvantage connected with getting an unrenovated apartment in the first place is adequately compensated and leveled out (Discount of half a month´s lease was not enough in the case at bar. The question of whether the state of the apartment was “renovated” in the first place will in future be the bone of contention. One should carefully document that state in case of a dispute many years down the line. The yardstick is whether wear and tear present at the time of moving into the apartment will be deemed as being so insignificant that the overall condition still gives the impression of a renovated flat. You can easily see the potential for conflicting assessments here in.

 

Two, the standard term of condition obligating the tenant to pay a quota when leaving the apartment before the stipulated periods of carrying out “Schönheitsreparaturen” have kicked (e.g. kitchen, bathroom 3 years, etc) is invalid too. This verdict of invalidity is irrespective of whether the apartment had been handed over in a renovated condition. It is based on the assumption that this standard term of condition stipulating a “quota” does not dependably say what amount will be at stake thus not allowing the tenant at the time of entering into the contract to know what financial burden she will face in the end.

 

Rulings dated 18. März 2015 – VIII ZR 185/14; VIII ZR 242/13; VIII ZR 21/13.

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Hi

 

I`m going to stay at a Hotel while working.I`m allowed to stay there as long as I wish for 380 a month.But I wonder if it will give me trouble when I try to register(anmeldung)

Do you think think they will not consider that a residence?

 

thanks

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A new era – The Wohnungs-Makler under the new law (WoVermittG)

Undertaking to find a new place to reside in is troubling enough, and all too often, sometimes surprisingly so, the bill for the new apartment comes with an additional hefty price tag in form of broker fees.

As of 01.06.2015 the broker system with regard to renting space for living purposes has changed profoundly.

The “Bestellerprinzip” –  a buzzword for the truism “who orders pays” as in the popular German idiom “Wer die Musik bestellt muss sie bezahlen” – has been enshrined into the law. Henceforth, the tenant is only required to pay the fee of a broker if the latter is exclusively acting on behalf of and on the basis of a contract with the tenant. In all other cases the broker is barred from demanding a fee from the tenant. This includes other agreements that seek to circumvent that prohibition. They are invalid. One could think, as an example, of an agreement in which the landlord obligates the tenant to pay an objectively unjustified amount for some ostensibly other purpose (worthless furniture or other paraphernalia) in order to covertly use that amount to cover the fees of the broker. Such creativity on display designed to go around the law will be invalid.

This prohibition to make the prospective tenant pay the bill, unless the broker exclusively acted on the basis of a contract with the tenant, also effectively means that the business model is dead where the broker in the past acted for the landlord and the tenant at the same time and at the end of the day sent the bill to the tenant only.

Also, the contract with the tenant, as a prerequisite for billing the tenant at all (plus exclusively acting only on his behalf when offering the object), needs to conform to some written form. It does not need to be signed but must be entrenched in some medium (letter, emails, fax, etc). An oral or implied contract would be null and void.

 

 

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Hello

 

I just moved into an apartment

 

I have a cable for the telephone without any Dose, just the cable.

 

it is that legal? The Hausverwaltung said they will tell me if I have to pay in order to have the Dose or they will do.

 

Thanks

 

 

 

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What does "Abwohnen der Kaution" mean and is it legitimate?

 

On the last leg of a lease contract that is about to run out, especially with dismaying reports of obstinate and cranky landlords refusing to pay back the deposit, it is tempting to preempt such a headache by turning to simple math: Why not withhold further rental payment and refer the landlord to help himself from the deposit. Although it is fortunately less and less breaking news that this is unlawful being a violation of the tenant´s contractual obligation to pay the lease until the very end of the lease, there is still a number of people who think otherwise. In fact in a fresh lower court ruling a tenant had to be explicitly reminded on the illegality of this phenomenon which, in German, is aptly described as “Abwohnen der Kaution”

 

 

 

AG München, dated Urt. v. 5.4.2016 – 432 C 1707/16

 

 

 

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Allowing the daughter to use the flat – grounds for termination?

 

Well, saying yes to that question sounds preposterous, and, indeed, it is.

 

But behind this question lurks the issue of third party use of a rented flat.

 

Two sections in the civil code deal with the question of permitting a third party to use a rented flat, namely section 540 Civil Code and section 553 Civil Code.

The former stipulates that the tenant is not allowed to permit a third party to use the flat without the landlord´s permission, while the latter specifies when the tenant might have a claim against the landlord to permit leaving part of the flat (not the whole) for use by a third party.

 

That said, what follows is the case that has been recently decided by the AG Munich concerning the now more than grown up daughter of the tenant.

 

The plaintiff is owner of a flat in Munich. Some decades ago the defendant rented the flat and moved into it with his wife and daughter who, at that time, was a child. Fast forward a couple of decades (three to be exact) and the parents spend just about three months in the flat during winter. For the rest of the year the daughter lives in the flat on her own while the parents spend their time in Turkey. The plaintiff thinks that this constitutes illegal use by a third party without his permission and, after sending a “cease and desist” in vain, terminated the rental contract. Now, he sues for eviction.

 

And he lost. But have a glance at the reasons: First, the court stated the obvious that the daughter as a close family member belongs to a privileged circle and is thus entitled to use the flat with or along with her father. Second, the court clarified that the privilege to accommodate a close relative just lasts as long as the tenant himself keeps using the flat. This means in turn that the tenant is not allowed to permit use, even to a close family member, just for that person´s own sake. Such a scenario---where the proper tenant more or less abandons the flat---, however, suggests itself only if the tenant uses the flat merely sporadically and has just single items left there. Without specifying what “sporadically” means, the court concluded that using the flat for three months in a year is well sufficient.

 

AG München, dated Urt. v. 2.3.2016 – 424 C10003/15

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Police search and damage of the apartment. Does the tenant owe damages to the landlord?

 

The Civil Federal Court had to examine the question whether the tenant owed damages to the landlord after a search by the police found 26 gram of marijuana in the flat while causing damages to the apartment door on entering the flat.

 

Here is a brief outline of the case:

 

The tenant rented the flat in question. In June 2013 the court sanctioned a search of the apartment on the ground that there was probable cause that he was trafficking in illegal drugs during January and October 2012. In the end he was acquitted of that charge of trafficking. While the police carried out the apartment search it seized 26 gram of marijuana. That is why he was sentenced for illegal acquisition of drugs to three months in jail.

 

The landlord sued the tenant for damages with regard to the broken apartment door.

 

The case was dismissed in the lower courts and now, on appeal, before the Federal Civil Court (BGH).

 

The verdict of the BGH shows the necessity to carefully examine the factual basis of each case.

 

First, the BGH reminded the tenant that storing 26 gram of marijuana breached his duty of care which he owed to the landlord with respect to using the apartment properly. The tenant is under obligation to treat the lease object with care and refrain from any conduct that could endanger it. Here, the Court noted that general life experience dictates that someone who stores illegal drugs in his apartment has to reckon with damages that could ensue in the course of search and seize measures by prosecuting authorities.

 

The Court´s summary of a tenant´s duty of care thus opened the door for a damages claim – before being shut close again just as quickly by a closer look of the facts of the remaining facts.

 

The Court pointed out that, on inspection of the facts, there was no causality between the only corroborated breach of care as pointed out above (storing drugs) and the search order that led to the damage of the apartment door.

 

Why? Because the probable cause forming the basis of the search order (trafficking in drugs) was later not corroborated, neither in the criminal proceedings nor in the civil proceedings at hand. This is distinct from the subsequent indictment in connection with the 26 gram of marijuana that has been seized in the flat. Because irrespective of this later discovery, the search (and damage) would have happened anyway, even if the tenant did not buy and store the illegal drugs in his apartment.

 

BGH dated 14. Dezember 2016 - VIII ZR 49/16

 

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Two take home messages from two BGH rulings dealing with „Eigenbedarf“.

 

 

“Eigenbedarf” – i.e, claiming to need the dwelling for oneself – is a dreaded word for tenants in German lease law because it paves the way for the landlord to displace his tenant for reasons other than contractual violations.

 

Now, here is the deal: Such a termination can backfire if the grounds for “Eigenbedarf” have been made up. The landlord faces a damages claim if it is later revealed that the landlord used “Eigenbedarf” as a ruse. This already is long established case law. The challenge for the duped tenant is to demonstrate that he indeed has been deceived. In the ruling at hand the BGH reminded the lower courts (who just rejected such a claim for lack of evidence on part of the tenant) that once it is clear that “Eigenbedarf” did not materialize (the landlord did not use the flat as proclaimed) it is on the landlord to provide a reasonable and plausible explanation. Only if the landlord meets this standard is the burden again back on the tenant who then has to give lie to what the landlord just plausibly claimed to be true. In other words the BGH admonished the courts to first diligently test the explanation given by the landlord for why things suddenly took a different turn before asking the tenant, who justifiably is not privy to the circumstances surrounding the landlord, to step in with his onus to prove the landlord wrong.

 

Second, “Eigenbedarf” used to denote that the landlord needed the flat, etc for his own or his kin for living purposes. However, this is just one example of a more general wording of the law which states more broadly that the landlord needs a “berechtigtes Interesse” to avail of the flat, etc. So courts began to say this “legitimate interest” is also being met when the landlord maintains that he needs the premise for carrying out his freelance job or business, i.e for working purposes. Here the BGH put on the brakes with another ruling. You have to distinguish, the BGH says, between mixed use (both for living and working) and use exclusively for the job. In both cases the circumstances of the case are important as both instances are distinct from planning to use the flat for living purposes only. The BGH tightens, however, the criteria when only exclusive use for working purposes is at stake as opposed to mixed use which is closer to using the flat for living in it. So what is the difference between mixed use and working only? Let´s put it this way, if the landlord wants to avail of his flat for using it exclusively for working purposes, there have to be disadvantages of significant weight to him (“Nachteile von einigem Gewicht”) if he would be denied from claiming “Eigenbedarf”, i.e. if the tenant would continue his stay. Naturally, this leaves ample room for arguing one way or the other but the emphasis is on “significant”. A comparison with the "mixed-used" category should help. Here the Court allows for a lower bar. It is sufficient when the landlord cites reasonable practicable grounds. Whether a landlord is wise in admitting that he needs the flat exclusively for work purposes only is anyone´s guess. Then again, ruling one is lurking around the corner.

 

BGH, Urt. v. 29.3.2017  - VIII ZR 44/16 „Eigenbedarf abuse“

 

BGH, Urt. v. 29.3.2017 – VIII ZR 45/16 „ work related“

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33 minutes ago, fraufruit said:

Interesting. I've always wondered how a former tenant who was put out for Eigenbedarf could find out who moved in next.

1. Reading the names at the letter box;

2. By setting Antrag at Melderegister to find out who is registered at this address (this may require a lawyer to justify berechtigtes Interesse).

3. Ringing the bell and talking to new tenant.

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OK.

May be difficult seeing the mail box with no more keys to the house but should be able to look at the name on the doorbell, I suppose.

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you can't see the mailbox but you can always see the name on the bell, streetside. 

 

My ace in the hole (should I - heaven forbid - ever need one) is having a couple of great neighbors who I would continue to visit even if I couldn't live here anymore ;)

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