Helmer Tieben
Rechtsanwalt Tenancy Law
Schwerpunkte
- Court representation in landlord/tenant disputes
- Legal advice on tenancy bonds and rent increases
- Termination of lease agreements
- Breach of tenancy agreements
- Rights and obligations of landlords and tenants
Terminating and otherwise ending residential tenancies
Time and again, our law firm is asked to counsel and represent tenants or landlords who want to terminate residential lease agreements. In the case of residential tenancies, terminations can differ strongly – depending on whether the landlord or the tenant is terminating the lease agreement. The landlord requires a special reason for termination, which he must, moreover, specify in detail in his notice of termination. Common grounds for termination under tenancy law are, for example, belated rent payments, behaviour that endangers the rental property or disturbs the domestic peace, such as insulting or threatening other tenants or the landlord. Especially in metropolitan areas such as the city of Cologne, where residential space is hard to come by, termination is therefore one of the most contentious issues between tenant and landlord.
For this reason, when it comes to terminations under residential tenancy law, both landlords and tenants need legal advice. The tenant should immediately verify that the termination was justified and, if necessary, lodge an objection pursuant to section 574 of the German Civil Code (Bürgerliches Gesetzbuch) or take other measures against the termination. Before giving notice, the landlord must verify whether he actually has the right to terminate, whether his notice of termination is correctly worded and whether he has duly observed the statutory time limits.
Also, the question whether this is an ordinary termination (with a notice period) or extraordinary termination (without a notice period) and/or whether one or several warnings are necessary before giving notice is often difficult to decide and can lead to costly mistakes, if you are not familiar with tenancy law. Under certain circumstances, a cancellation agreement (Aufhebungsvertrag) between tenant and landlord may even be preferable to termination. Termination for the purpose of owner occupation (Eigenbedarfskündigung) or termination for economic exploitation (Verwertungskündigung) by the landlord are further important topics for tenancy law counselling. It is becoming increasingly common for wealthy investors to buy entire buildings, enter into tenancy agreements and then terminate the leases of long-term tenants at short notice.
However, both termination for the purpose of owner occupation and termination for economic exploitation are subject to strict requirements and must be justified extensively and precisely. As an expert on tenancy law, Lawyer Helmer Tieben advises both landlords on the drafting of notices of termination for owner occupation and economic exploitation, and tenants on how to defend themselves against such notices.
Under certain circumstances, Lawyer Helmer Tieben, can of course also attempt to negotiate a settlement as the legal representative of the tenant or the landlord. You can rely on his expertise and continuous further training.
Your contact for tenancy law is Lawyer Helmer Tieben. Lawyer Tieben was admitted to the bar in 2005 and is an expert on tenancy law. He is a member of the Working Group for Tenancy Law and Real Estate of the German Bar Association. You can reach Mr Tieben on 0221 – 80187670.
Enforcement of or defence against eviction actions/forced evictions
If the tenancy has already been terminated but the tenant has not yet moved out, it can easily happen that the landlord will attempt to get rid of the tenant by means of an eviction action or forced eviction. An eviction action can already be lodged before the end of the notice period, so as not to lose time, if the tenant has made it clear through his behaviour (objection to the termination, etc.) that he will not leave even after the notice period has expired.
The need for an eviction action arises due to the fact that the landlord cannot simply force the tenant out, as this would constitute a so-called unlawful interference. In this respect, the landlord is restricted in exercising his ownership rights to the property.
Moreover, the landlord requires a so-called eviction title (court judgement), which in turn can only be enforced by a bailiff. Since the loss of one’s home inevitably means a serious hardship, forced eviction can be fraught with major obstacles. Even if a court rules that the tenant must vacate and surrender the premises, the tenant can still apply for protection against eviction to the court shortly before the eviction date, on the basis of which the court can temporarily suspend the forced eviction.
The premises may also be seized by the competent regulatory authority so that the tenant can remain there despite the eviction title, because the regulatory authority is automatically notified when the landlord files for eviction.
Contact Lawyer Tieben if you are a tenant threatened by eviction or a landlord seeking to enforce an eviction action. Lawyer Tieben will offer you purposeful and in-depth counselling to enforce your rights. Of course, you can also assert compensation claims, which may arise due to the delayed return of the rental property.
Defects of rental property/rent reduction
Problems may also arise between landlord and tenant if the rental premises has a defect or if a warranted characteristic of the rental property is lacking or later ceases to exist. For the duration of a major defect of the rental property the tenant will no longer be obliged to pay rent or can reduce the rent correspondingly. So, if the tenant is convinced that the rental property is defective, he must first verify whether this is a major defect according to the law and he is therefore entitled to reduce the rent. Moreover, he must check the amount of a possible rent reduction in each individual case.
If the tenant wrongly reduces the rent or if the rent reduction is too high, the landlord may well be justified in giving notice if a certain amount of arrears is exceeded. Assertable defects of the rental property may include, for example, damages due to dampness/mould or noise disturbance due to loud traffic or inconsiderate neighbours. Particularly in large cities like Cologne, with its high population density, this is one of the most frequently asserted defects. We are happy to provide in-depth advice on the enforcement of or defence against rent reductions due to defects of a rental property.
In the case of rent reductions for mould in a residential space, the entitlement to rent reduction depends on whether the mould is due to structural problems (cold bridges, damage to the façade, etc.) or to the tenant’s heating and ventilation behaviour. In order to avoid having to clarify this question during proceedings for eviction or for payment of a reduced rent, it may make sense to initiate so-called independent proceedings for the taking of evidence.
Lease agreement, rent and rent increases
The lease agreement is the foundation of a residential tenancy. When drafting the lease agreement, both parties should exercise particular caution, as possible future legal disputes already need to be considered at this point.
First of all, the agreement should specify the exact designations of both contracting parties. This is particularly relevant if a legal entity (for example, a company) is one of the contracting parties of the lease agreement. In addition, the rental property should be accurately described, as this is the only way to avoid disputes between the parties on the scope of the lease. Other important parts of a lease agreement include clauses on termination, cosmetic repairs, the deposit and the rent. Contact Lawyer Tieben, and he will be happy to review your lease agreement and your contractual rights and obligations!
We will also be happy to examine whether the amount of the agreed rent or a rent increase proposed by the landlord are reasonable. This is because, although the rental premises is owned by the landlord, he is by no means entitled to charge any amount he likes, as German law sets limits on the agreed rent. These limits are the so-called “Mietpreisbremse” (rent cap), the “Mietspiegel” (standard rents table), and the usury laws of the German Civil Code.
For landlords, Lawyer Tieben will be happy to assess the maximum possible amount of a rent increase and to draft claim letters to the tenant to this effect, to keep you on the safe side.
Maintenance, modernisation and accessibility
The law distinguishes between modernisation measures and maintenance measures. Although case law has lowered the bar for the announcement of modernisation measures in recent years, the requirements for the announcement and implementation of such measures are still rather stringent.
If your tenant should wrongly reject modernisation measures and the related rent increases, or if you as a tenant do not agree to the announced modernisation measures, please contact us so that we can help you assert your rights.
The same applies to the enforcement of accessibility measures in your home or to questions about obligations relating to maintenance or cosmetic repairs.
Operating cost statements/utilities statements
Each year the question arises, both for landlords and tenants, whether the drafted annual utilities statement actually complies with statutory regulations. In principle, we can assume that around 50 per cent of all utilities statements are incorrect. This need not be deliberate on the landlord’s part, but is very often the result of mere ignorance or misjudgement. Don’t simply accept a drafted utilities statement, but have it checked by Lawyer Helmer Tieben, to be on the safe side.
Rental deposit
The rental deposit is a security provided by the tenant and is intended to serve as a guarantee for the landlord if the tenant does not duly meet his obligations under the lease agreement. In other words, it is not an instrument the landlord can use to enforce disputed claims of any kind against the tenant post-contractually.
Hence, it is constantly a source of dispute between landlord and tenant whether and how much of the rental deposit the landlord can retain, and requires careful examination. Lawyer Tieben will of course be happy to advise you on this topic at any time.
Subletting
Lawyer Tieben advises landlords and tenants with regard to legal issues on the topic of subletting. If your tenant has sublet his residential space without your consent, you have certain rights, even including an ordinary or extraordinary termination of the lease.
If you are a tenant and your landlord refuses to allow you to sublet your residential space despite a legitimate interest, you can sue your landlord for consent or for lost rent. Simply contact Lawyer Tieben!
Other fields of law
Of course, we offer advice and representation not only for the fields outlined above. Lawyer Tieben will assist you in all matters relating to tenancy law, e.g. in the case of a lawful change of tenants, non-contractual use of the rented premises, non-contractual structural changes or installations by the tenant, the enforcement of duties of care by the tenant (heating, ventilation or snow clearing) or the landlord, as well as the enforcement of or defence against the landlord’s right of inspection and access.
Commercial tenancy law
Commercial tenancy law can be regarded as a special field within tenancy law. Especially in commercial tenancy law, errors in contract drafting can have serious consequences, so that legal advice should already be sought when concluding the lease agreement.
I can answer your questions and provide you with in-depth advice on commercial tenancy law. I will offer you relevant solutions relating to commercial tenancy law and rental law, for your commercial lease agreement and rental agreement.
I will be happy to draft a commercial lease or rental agreement tailored precisely to your specific needs. Of course, I can also review your commercial lease agreement as a whole or only regarding specific issues you have raised concerning your commercial lease agreement and commercial tenancy law.
As a landlord, you will soon find that it is well worth thinking about a strategy in advance for tenants who are no longer able or willing to pay. In this respect, it is important to take precautions and protect oneself by means of suitable and lawful contractual clauses when concluding the lease agreement. In the field of commercial tenancy law, this will certainly pay off for you as a landlord.
As a tenant or lessee of commercial space, you should submit or send us your lease or rental agreement for a review, if possible, before you sign the agreement.
Unlike with residential lease agreements, leases in the field of commercial tenancy law are usually long-term lease agreements which the commercial tenant cannot easily cancel prematurely. He will remain tied to the commercial lease agreement once it has been concluded and must pay the agreed rent until it expires.
Often concluded for many years, it can be very difficult to get out of commercial lease agreements before the end of their term, when necessary, for example because your sales are no longer satisfactory or you need to close down, sell or relocate your business.
But even in such cases, you can take precautions by means of relevant contractual agreements and targeted supplementary measures to enable or at least facilitate an early exit from a long-term lease agreement later on. So its well worth having your commercial lease agreement reviewed by a lawyer who is experienced in commercial tenancy law before signing it.
Regardless of the amount of the rent and term of the contract (value in dispute), we will only charge you for the time we have actually spent on the contract review based on a pro rata hourly fee.
As a result, the costs for reviewing a lease agreement for commercial space and legal counselling are usually much lower than the statutory fees under the German Lawyers’ Fees Act (RVG), which depend on the value of the case.
When renting retail space, tenants in shopping centres are frequently overwhelmed by all the contracts and supplementary agreements they have to sign. Most retail space tenants are not really familiar with commercial tenancy law.
Often, tenants do not even fully read, let alone properly understand, lengthy commercial lease agreements. In most commercial leases, key aspects for retail space tenants, such as footfall in a shopping centre, tenant mix and competition are not considered at all or not in their interests.
Verbal commitments by agents who brokered the contracts are frequently missing in the clauses, as are prior verbal assurances by the landlord.
In the case of a dispute, such verbal commitments are more or less worthless to a retail space tenant. It is the written lease agreement that counts, and it usually does not include details that were previously negotiated during rental talks or supplementary agreements. Therefore, you should make absolutely certain that verbal assurances and commitments are actually included in the lease agreement!
If possible, you should find out all you can about the property personally before renting a commercial space.
Especially in a shopping centre, you can easily ask retailers who are already located there about their experiences in the centre, their commercial lease agreements, vacancy rates, customer frequency, customer structure and purchasing power, realistic operating costs, and commitment of the centre management etc.
You should be particularly wary if the property where you want to rent a space still awaits completion or is not yet being operated. Ask the agent and landlord to put down all of their assurances in writing and make them part of the lease agreement. Make sure that the date of completion of the property and the latest commencement date of the lease are specified in the lease agreement.
The same applies to a realistic amount of operating costs. In shopping centres in particular, they are often a lot higher than previously stated when it comes to costs for administration, air conditioning and ventilation, security, operation and maintenance of escalators, lifts, cleaning, etc. Therefore, if possible, demand a written assurance in the lease agreement itself that the landlord has stated realistic operating costs.
In case of doubt, you should better ask an expert on commercial tenancy law to draft commitments, assurances and agreements in a commercial lease contract!
Be it a termination or eviction action, operating costs, defects of the rental property, rent reductions or compensation, I am here to help you with any problems relating to commercial tenancy law.
I advise both landlords and tenants in depth on all questions relating to commercial tenancy law, commercial rentals and rental law. This not only includes prudent contract design for your rental or commercial lease agreement but also any questions relating to duration and termination, rental securities and rental guarantees, defects of the rental premises, rent reduction, operating cost statements, rent increases, renovations and evictions etc.
Contact Us
Call us on (0049) (0)221 80187670 or send us an email to info@mth-partner.de if you need help with your tenancy law issue. We will respond to your queries quickly and confidentially.
