Berlin Regional Court, 09.07.2013, Ref.: 63 S 438/12
§ Section 554 of the German Civil Code (BGB), which applied until the Tenancy Law Amendment Act came into force on 01.05.2013, stated that the tenant had to tolerate modernisation measures that were necessary to maintain the rented property.
However, this did not apply if the measures would have meant hardship for him, his family or another member of his household. Among other things, the expected rent increase had to be taken into account.
According to the new Section 555 d (2) sentence 2 BGB introduced by the Tenancy Law Amendment Act, the expected co-increase is no longer relevant for the tenant's duty to tolerate.
The rent amount itself, which was named as a reason for hardship in the old version, is now only to be taken into account in a rent increase in accordance with Section 559 (4) and (5).
In the above-mentioned judgement, the Berlin Regional Court had to decide whether the landlord had a claim to toleration under Section 554 (2) sentence 1 BGB (old version).
Facts of the Case The landlord intended to modernise the property, which would lead to an increase in the basic rent of EUR 62.00 per month.
The tenant then refused to tolerate the modernisation, arguing that she would have to spend more than half of her income on rent payments after the rent increase. This would represent an unacceptable hardship, so that the modernisation could not be tolerated.
The landlord then sued for toleration of the modernisation measures she had planned, which were initially rejected by the local court. The plaintiff then appealed against the judgement of the local court to the Berlin Regional Court.
Berlin Regional Court: The court also did not agree with the plaintiff's view and rejected the existence of the claim for acquiescence.
The defendant did not have to tolerate the measures in dispute in accordance with Section 554 (2) sentences 2 and 3 BGB (old version), as they would mean hardship for it, which could not be justified even when taking into account the legitimate interests of the plaintiff landlord and other tenants.
After deducting the increased rent, the tenant must be left with an income that allows him to essentially maintain his previous standard of living. An overall assessment of the tenant's income and financial circumstances must be carried out in order to determine a burden quota.
The average rent burden ratios most recently published by the Federal Statistical Office on the basis of the microcensus survey can be used as a benchmark for the question of when hardship exists. These averaged 22.8 % in 2010.
The total income available to the defendant and his family at the end of the hearing should be used as a basis for the assessment to be made. This amounted to € 2,180.00.
Taking into account the expected rent increase of € 62.00, the total rent would then amount to a total of € 1,110.00 and thus justify a rent burden for the defendant amounting to 51 % of her income, which is considerably above the national average.
When weighing up the interests of the tenant, it could be taken into account to the detriment of the tenant that he was paying for a much too large and expensive flat in relation to his social circumstances. However, there was no such disproportion here.
Source: Berlin Regional Court
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