Cologne Local Court, 19 December 2019, Ref. 221 C 200/19
In order to counteract the sharp rise in rents in certain neighbourhoods, the grand coalition in the Bundestag passed the so-called rent freeze in March 2015. The federal states now have the option of limiting rent increases for re-letting by statutory order. They can decide for themselves in which areas of the state the rent freeze should apply. To enable tenants to check the permissibility of their rent, they have the right to obtain information from the landlord about the facts that are relevant for calculating the permissible rent. Such facts include, for example, the amount of previous rents, the local comparative rent or modernisation measures carried out on the flat.
NRW issued such an ordinance in which, in addition to Cologne, several other areas were labelled as having a tight housing market (the Rent Limitation Ordinance can be found at: https://recht.nrw.de/lmi/owa/br_bes_text?bes_id=30884&aufgehoben=N&anw_nr=2). Many other federal states did the same. However, the ordinances in states such as Baden-Württemberg, Brandenburg and Hamburg had formal deficiencies that led to the ordinances being null and void. The ordinances were also deemed invalid in NRW. In the judgement below, the Cologne District Court ruled that the NRW Rent Limitation Ordinance is also invalid and that re-letting rents are therefore not limited.
FactsIn the present case, the parties are in dispute about the permissible amount of the rent for a flat in Cologne, the landlord's obligation to provide information about the rent amount in previous tenancies and the reimbursement of pre-litigation legal fees. The plaintiff is a legal service provider who had claims against the defendant landlord assigned to it by a tenant. The tenancy between the tenant and the defendant landlord had existed since 1 August 2018, the rent was €1500 for 108 sqm.
In the lawsuit, the plaintiff requests that the landlord be ordered to provide information about previous tenancies with regard to various points. For example, the plaintiff would like to receive information about the rent for the two previous tenancies. She is also seeking information about any rent increases in the last year of the tenancy with the previous tenant. In addition, the plaintiff would like to know from the landlord whether modernisation measures within the meaning of Section 555b BGB were carried out in the last three years prior to the start of the tenancy and whether the landlord has taken any measures to modernise the property. § 555b BGB and the amount by which the rent would have increased in accordance with § 559 I-III BGB and § 559a I-IV BGB. Finally, the plaintiff seeks information as to whether the tenancy with the tenant is the first following comprehensive modernisation in accordance with Section 556f BGB.
In addition to the requests for information, the plaintiff is seeking an order for the repayment of € 454.56 in overpaid rent, as in her opinion the maximum monthly rent is € 1045.44. She refers to the "rent cap" (§§ 556d ff. BGB). The rent cap was implemented in NRW by the NRW Rent Limitation Ordinance of 23 June 2015.
She also requests that the landlord be ordered to reimburse the pre-trial legal fees in the amount of € 1166.14.
The landlord requests that the claim be dismissed as it does not consider the legal service provider to be authorised to enforce such claims on behalf of the tenant. Furthermore, it considers the monthly rent of € 1500 to be permissible.
Cologne Local CourtCologne Local Court rules that the claim is unfounded. The landlord does not have to comply with the plaintiff's request. It emphasises that this is not due to the lack of legitimacy of the legal service provider, as stated by the landlord. In this regard, it refers to a decision of the BGH (BGH, judgement of 27 November 2019 - VIII ZR 285/18).
Rather, the Cologne District Court found that Sections 556d et seq. of the German Civil Code (BGB) are not applicable at all. These are only applicable in cases where there is a tenancy for residential space in an area with a tight housing market. However, it is not the judge who can determine whether a tight housing market exists, but only a statutory order issued by the state government. This must also fulfil the criteria of Section 556d II BGB. An important criterion here is that the ordinance must include a justification as to why an area has a tight housing market. However, in the opinion of the court, such a statutory order was not effectively issued in NRW. It is true that the NRW Rent Limitation Ordinance (MietpreisbegrenzungsVO NRW) was issued on 23 June 2015, which in principle certifies that Cologne has a tight housing market. However, it was not publicised with sufficient justification as required by Section 556d II 5.6 BGB and was therefore null and void. In the opinion of the Federal Court of Justice (BGH, judgement of 17 July 2019 - VIII ZR 130/18), which the Cologne District Court agrees with, this formal error cannot be remedied by subsequently adding a statement of reasons. The fact that the state government subsequently published a sufficient justification on 20 March 2019 therefore does not change the nullity of the NRW Rent Limitation Ordinance. Rather, the entire ordinance must be published again together with sufficient justification, which was not the case at the time of the judgement.
Thus, the plaintiff's claims are not given due to the lack of a legally established tightening of the housing market.
Source: Cologne Local Court
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