Landlord refuses to pay back rent deposit - questions on legal process

16 posts in this topic

Hi all,

 

I realise there are similar topics in the forum, but I haven't been able to find one that matches the details of my case so well.

 

In 2018, my family and I moved to Mönchengladbach and paid a €1000 deposit on a flat there. Let me at this point mention that the landlord did nothing to repair any defects with the flat (some shutters did not close, and others would get stuck once down, leaving me and my family sitting in dark, cold rooms in the winter, and hot, bright rooms in the summer; the basement was susceptible to flooding, which we were not warned about, leading to several hundred euro of damage to our property and costs of several hundred more euro to clear out the destroyed items - something the landlord said he would do for us 'als Wiedergutmachung', but never did; the shower basin was leaky, resulting in mould on the tiles and floorboards; the heating did not work for almost two weeks in December, which led to mould behind and on the back of furniture; the front door of the house, which the landlord promised to change when we moved in but never did, was not secure, which resulted in the theft of items from the basement - before the flooding...), which will hopefully explain my reluctance to accommodate his other errors, which I outline below.

 

In August 2019, we left Germany for Ireland, terminating the lease in accordance with the contract (giving three months' notice) and with a signed Übergabeprotokoll from the landlord's agent showing that the flat had been returned in the expected condition. Between then and the end of last year I repeatedly wrote to my former landlord, requesting that he pay the deposit back into my bank account, and each time I have received no response.

 

On 6th January 2020, the Nebenkostenabrechnung for 2018 arrived - 6 days too late according to § 556 BGB. As it was late, I initially ignored it, but then in early July 2020 - well within the one-year cut-off - I wrote to the landlord to tell him that I wouldn't be paying his bill as it arrived too late, citing the relevant legal paragraphs, and again requesting that he return my deposit. The landlord did not respond to this letter.

 

The Nebenkostenabrechnung for 2019 arrived on 5th January 2021 - once again 5 days too late, and again I wrote to the landlord to say I would not be paying it, with a further request to return the deposit. The landlord did not respond to this letter either.

 

As far as I am aware, the landlord now has no claim over the deposit and is legally obliged to return it in full - plus interest. Therefore, at the beginning of February 2021, I wrote him a letter (subject: Fristsetzung: Rückzahlung der Mietkaution), setting a deadline of 15th February to return the money. As the letter only arrived on 12th February, I extended this deadline to 19th February via a WhatsApp message, giving him an entire week to return the money.

 

Today I received a WhatsApp message from him, trying to intimidate me into paying these bills, giving the impression that the court would side with him if I were to take legal action.

 

If the guy had fulfilled his obligations as a landlord while we were living in the flat, I would be more than willing to forgive him a few days and pay the Nebenkostenabrechnungen. However, as life was pretty miserable for me and my family in that flat, am I not inclined to do so. However, before I do take legal action, I'd like to know if anyone here has had a similar experience.

 

The questions on my mind are:

  • Have I fulfilled all my obligations regarding the Nebenkostenabrechnungen? Did I stick to all the deadlines?
  • Does my move to another EU country count as a "special reason" to justify the landlord's being unable to get the Nebenkostenabrechnungen to me on time (he posted 2018's bill on 23rd December 2019, and 2019's bill on 27th December 2020 - of course they weren't going to arrive in time!)? Ordinarily, if the Nebenkostenabrechnung arrives late due to a delay with the German post, that's something the landlord has to grin and bear...
  • Is there a time limit on the landlord reasserting his claim? (There's the 12-month deadline for the delivery of the Nebenkostenabrechnung, then another 12 months in which the renter can raise an objection to said Nebenkostenabrechnung. But is there a further deadline for the landlord to observe when countering the renter's objection?
  • What is my next step - a letter with the word Mahnung in the subject line, or the Mahnverfahren itself?
  • If I do start the Mahnverfahren, how do I calculate the interest accrued on the withheld deposit? I haven't seen a Sparbuch or anything.
  • Is there anything else I should bear in mind?

 

Thank you so much to anyone who has any advice! I'm absolutely at the end of my tether with this penny-pinching man and, honestly, just want to move on with my new life now - while giving him a taste of his own medicine, of course! ;)

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Did he know your new Irish address by the time he sent the Nebenkostenabrechnungen or did he send it to your German address and it was forwarded from there? In the latter case my layman’s guess would be that you´ll have to pay. In the former I can't even guess.

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18 hours ago, BBMSteve said:

Hi all,

 

I realise there are similar topics in the forum, but I haven't been able to find one that matches the details of my case so well.

 

In 2018, my family and I moved to Mönchengladbach and paid a €1000 deposit on a flat there. Let me at this point mention that the landlord did nothing to repair any defects with the flat (some shutters did not close, and others would get stuck once down, leaving me and my family sitting in dark, cold rooms in the winter, and hot, bright rooms in the summer; the basement was susceptible to flooding, which we were not warned about, leading to several hundred euro of damage to our property and costs of several hundred more euro to clear out the destroyed items - something the landlord said he would do for us 'als Wiedergutmachung', but never did; the shower basin was leaky, resulting in mould on the tiles and floorboards; the heating did not work for almost two weeks in December, which led to mould behind and on the back of furniture; the front door of the house, which the landlord promised to change when we moved in but never did, was not secure, which resulted in the theft of items from the basement - before the flooding...), which will hopefully explain my reluctance to accommodate his other errors, which I outline below.

 

In August 2019, we left Germany for Ireland, terminating the lease in accordance with the contract (giving three months' notice) and with a signed Übergabeprotokoll from the landlord's agent showing that the flat had been returned in the expected condition. Between then and the end of last year I repeatedly wrote to my former landlord, requesting that he pay the deposit back into my bank account, and each time I have received no response.

 

On 6th January 2020, the Nebenkostenabrechnung for 2018 arrived - 6 days too late according to § 556 BGB. As it was late, I initially ignored it, but then in early July 2020 - well within the one-year cut-off - I wrote to the landlord to tell him that I wouldn't be paying his bill as it arrived too late, citing the relevant legal paragraphs, and again requesting that he return my deposit. The landlord did not respond to this letter.

 

The Nebenkostenabrechnung for 2019 arrived on 5th January 2021 - once again 5 days too late, and again I wrote to the landlord to say I would not be paying it, with a further request to return the deposit. The landlord did not respond to this letter either.

 

As far as I am aware, the landlord now has no claim over the deposit and is legally obliged to return it in full - plus interest. Therefore, at the beginning of February 2021, I wrote him a letter (subject: Fristsetzung: Rückzahlung der Mietkaution), setting a deadline of 15th February to return the money. As the letter only arrived on 12th February, I extended this deadline to 19th February via a WhatsApp message, giving him an entire week to return the money.

 

Today I received a WhatsApp message from him, trying to intimidate me into paying these bills, giving the impression that the court would side with him if I were to take legal action.

 

If the guy had fulfilled his obligations as a landlord while we were living in the flat, I would be more than willing to forgive him a few days and pay the Nebenkostenabrechnungen. However, as life was pretty miserable for me and my family in that flat, am I not inclined to do so. However, before I do take legal action, I'd like to know if anyone here has had a similar experience.

 

The questions on my mind are:

  • Have I fulfilled all my obligations regarding the Nebenkostenabrechnungen? Did I stick to all the deadlines?
  • Does my move to another EU country count as a "special reason" to justify the landlord's being unable to get the Nebenkostenabrechnungen to me on time (he posted 2018's bill on 23rd December 2019, and 2019's bill on 27th December 2020 - of course they weren't going to arrive in time!)? Ordinarily, if the Nebenkostenabrechnung arrives late due to a delay with the German post, that's something the landlord has to grin and bear...
  • Is there a time limit on the landlord reasserting his claim? (There's the 12-month deadline for the delivery of the Nebenkostenabrechnung, then another 12 months in which the renter can raise an objection to said Nebenkostenabrechnung. But is there a further deadline for the landlord to observe when countering the renter's objection?
  • What is my next step - a letter with the word Mahnung in the subject line, or the Mahnverfahren itself?
  • If I do start the Mahnverfahren, how do I calculate the interest accrued on the withheld deposit? I haven't seen a Sparbuch or anything.
  • Is there anything else I should bear in mind?

 

Thank you so much to anyone who has any advice! I'm absolutely at the end of my tether with this penny-pinching man and, honestly, just want to move on with my new life now - while giving him a taste of his own medicine, of course! ;)

5 days late.. 6 days? 2 months?... who really cares?

 

The landlord will possibly get slapped wrists in court and you will more than likely have to pay the Nebenkosten...  You havent said that you disagree with them.. you just dont want to pay because he was a bit slack...

 

You used and bbenefited from services rendered...  why shouldnt you pay?

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Sorry, SpiderPig, but that's bad advice. You've been in Germany long enough to know that in court, a deadline is a deadline, whether it's missed by 3 days or 3 months.

 

By missing the deadline (twice), the landlord forfeited any claim to excess expenses in those two years.

 

The only reason I can think of why this might not be the case is if the billing year for the ancillary expenses doesn't actually run from January to December, but instead has a mid-year cutoff date.

 

In any case, that doesn't entitle the landlord to keep the OP's deposit.

 

@BBMSteve: I'd suggest you find a lawyer to write a letter to the landlord for you. They often cave at the first sight of a legal letterhead, especially if they know they're wrong and are just trying to pull one over on the "dumb foreigner".

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@SpiderPig Thanks for your reply, but I know that to be bad advice too. I have written to the landlord to inform him that the NK-Abrechnungen for 2018 and 2019 arrived too late and that he no longer has a claim. It's not that I dispute anything in the NK-Abrechnungen themselves (although I do personally think it is cheeky that tenants are made to pay the landlord's insurances and property tax!), but it all comes down to the fact that they arrived after the deadline set out in law (EN).

 

As @El Jeffo says, a deadline is a deadline, and the landlord missed it on both occasions. The reasons behind my wanting to assert my right not to pay these expenses are my own and of no relevance to the facts of the matter. I merely added them to show that I'm not doing this just to save myself a few euro. You teach people how to treat you in this world, and I have certainly learned a lesson from this man!

 

Just to clarify: the billing year was the same as the calendar year.

 

What it boils down to, I guess, is two questions:

  • Did I send the letters rejecting his bills on time (see OP)?
  • Does my living in Ireland constitute a reason why "the lessor is not responsible for the lateness of the assertion"? (i.e. Is an inevitable delay caused by sending the bills internationally a factor that is beyond the control of the landlord, or should he have foreseen this and sent the bills earlier than 23rd and 27th December? They are dated 17th and 18th December, and the enclosed heating cost calculations are both dated mid-November, so there is nothing there to indicate he wasn't able to send me the bills earlier.)
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40 minutes ago, BBMSteve said:

Does my living in Ireland constitute a reason why "the lessor is not responsible for the lateness of the assertion"? (i.e. Is an inevitable delay caused by sending the bills internationally a factor that is beyond the control of the landlord, or should he have foreseen this and sent the bills earlier than 23rd and 27th December? They are dated 17th and 18th December, and the enclosed heating cost calculations are both dated mid-November, so there is nothing there to indicate he wasn't able to send me the bills earlier.)

 

You didn't mention this previously (or you did and I missed it). I believe the postmark date is material in this case, not the actual delivery date. I may be wrong, but I don't think the landlord is responsible for compensating for the vagaries of international mail delivery.

 

You should also be aware that just because the heating cost calculations are dated mid-November doesn't mean the landlord received them immediately.

 

Without knowing the amounts involved (that is, your deposit minus the excess from the two ancillary cost statements), I'm not sure if it will be worth your time pursuing this further, particularly since you've been cheesing him off with your (likely) incorrect claims of not having to pay the bills.

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I also posted my query on mietrecht.org (in potentially slightly dodgy German!), and the resident landlord and tenancy law expert there seems to think I have done everything correctly and that I should seek legal advice regarding my next steps. So I guess that's what I'm going to do... :)

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43 minutes ago, BBMSteve said:

I also posted my query on mietrecht.org (in potentially slightly dodgy German!), and the resident landlord and tenancy law expert there seems to think I have done everything correctly and that I should seek legal advice regarding my next steps. So I guess that's what I'm going to do... :)

This website might be cheaper than a consultation with a "normal" lawyer if you only need to ask a simple question: https://www.frag-einen-anwalt.de/

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Thanks, @jeba. I'll take a look!

 

@El Jeffo, the thing is, I've asked him to justify the delay, which he hasn't been able to do. If he had received those heating cost calculations late, he would have been able to demonstrate this. His only rebuttal so far has been a WhatsApp message in which he said it's about doing the morally correct thing - which I whole-heartedly agree with him on, and I think after neglecting his duties during our tenancy, I am doing the morally correct thing.

 

I do appreciate your replies here, but are they purely conjecture, or are they based on experience or in law? When I signed the lease for that flat, it was at the very end of 2018 (30th December, if I remember correctly), and I was actually in Ireland at the time visiting family at Christmas. In order to ensure the termination for my previous flat arrived on time, I used DHL's next-day international service (which also involved me driving 40 km to nearest the DHL location). It cost me approx. €65 and probably around €15 in fuel, but I did it as it saved me having to pay double rent in April. Is there a reason my former landlord couldn't have done the same to ensure payment of the NK 2018 and 2019?

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I am not a lawyer. My information is based on my personal experiences from living in Germany for over 30 years.

 

As to the legal principles, given that it was your choice to go to Ireland at the time, it was up to you to go to the extra measures needed to ensure that your termination was received on time. Your landlord is under no such requirements, given that your decision to be in Ireland at the time is beyond his control. That much is well established in the jurisprudence.

 

I wish you the best, but in my layman's opinion, you don't have any grounds to deny paying the excess utility bills.

 

2 hours ago, BBMSteve said:

(although I do personally think it is cheeky that tenants are made to pay the landlord's insurances and property tax!)

It's not the landlord's insurance, it's the building's insurance. As a tenant, the law says those costs can be passed on to you. Same with property tax.

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I wrote a long post with various points in it but I think the 'get legal advice' is pretty much all that needs to be posted.

 

 

 

 

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22 minutes ago, El Jeffo said:

That much is well established in the jurisprudence.

 

I haven't been able to find anything of the sort, and I've looked, believe me! Could you direct me to something to support this assertion? All I can find is the following verdict that would appear to support my case: https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=bf384942c8e9871eab834480e9c6b8a2&client=12&nr=47328&pos=0&anz=1

However, it does not concern international delivery. If you can point me to something that does show that another party does not have to abide by the law because I subsequently moved abroad, that would very much inform my decision on whether I pursue legal action.

 

25 minutes ago, El Jeffo said:

I wish you the best, but in my layman's opinion, you don't have any grounds to deny paying the excess utility bills.

 

The grounds are right there in the BGB: unless the lessor is able to demonstrate a valid reason why he was not able to get the bill into the lessee's hands within 12 months, he forfeits his claim.

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Just now, cb6dba said:

I wrote a long post with various points in it but I think the 'get legal advice' is pretty much all that needs to be posted.

 

 

 

 

 

Thanks, @cb6dba! I will. :)

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59 minutes ago, BBMSteve said:

I haven't been able to find anything of the sort, and I've looked, believe me! Could you direct me to something to support this assertion? All I can find is the following verdict that would appear to support my case: https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=bf384942c8e9871eab834480e9c6b8a2&client=12&nr=47328&pos=0&anz=1

However, it does not concern international delivery. If you can point me to something that does show that another party does not have to abide by the law because I subsequently moved abroad, that would very much inform my decision on whether I pursue legal action.

 

For me, the key is this section of the ruling:
 

Quote


Bedient sich der Vermieter zur Beförderung der Abrechnung der Post, wird diese insoweit als Erfüllungsgehilfe des Vermieters tätig; in einem solchen Fall hat der Vermieter ein Verschulden der Post gemäß § 278 Satz 1 BGB auch dann zu ver-treten (§ 556 Abs. 3 Satz 3 Halbs. 2 BGB), wenn auf dem Postweg für den Ver-mieter unerwartete und nicht vorhersehbare Verzögerungen oder Postverluste auf-treten.

 

 

Even if unexpected and unforeseeable delays occur if the landlord chooses to deliver by post, that is something he has to accept. That international post takes a little bit longer, especially around Christmastime, is surely to be fully expected and foreseeable and therefore does not provide grounds for the late delivery of the NK-Abrechnung.

 

My landlord has dated his calculations 17th December 2019 and 18th December 2020, yet waited six and nine days respectively to post them - periods that would have fully negated the delays and resulted in them arriving on time. My move away from Germany, therefore, cannot excuse his laziness.

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For anybody else who finds themselves in a similar position, the legal advice I’ve been given is that the Nebenkostenabrechnung had to arrive within twelve months, no matter where I now live, that the deposit is due back in full and that the landlord has now defaulted on the repayment of the deposit and as such must pay default interest on top.

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