Berlin Regional Court, 14/09/2016, 18 S 357/15
The next rent increase is sure to come. Many tenancy agreements run for decades, so the landlord can adjust the rent as soon as the rent has changed in the area over time or the flat has been modernised.
The tenant must usually authorise a rent increase to the local comparative rent (Section 558 BGB). However, the law restricts how much the landlord may increase the rent by and stipulates a cap, among other things. This means that the rent cannot increase by more than 20 per cent within three years. In tight housing markets, the limit is even 15 per cent. In addition, the tenant only has to tolerate a rent increase every 15 months. The landlord's rent increase must therefore remain within these limits.
Before the rent can be increased to the standard local comparative rent, the landlord must send his tenant a rent increase letter in text form. However, such a letter can be sent to the tenant by fax or other means rather than by letter. However, a justification is required. The rent increase letter must explain why the rent will increase in the future. The landlord can, for example, rely on the rent index, information from a rent database or an expert's report.
Facts of the case: Rent increase and cancellation
In this case, the defendant (landlord) increased the rent for a flat rented by him. The plaintiff (tenant) did not initially react negatively to this rent increase, but agreed to the increase and paid the increased amount. After some time, however, the tenant withdrew his consent and demanded a partial repayment of the rent already paid. In his complaint, he invoked Section 312c BGB, which regulates distance contracts.
§ 312c BGB: Distance contracts in tenancy law
According to Section 312c of the German Civil Code (BGB), distance contracts are those in which contract negotiations and the conclusion of the contract take place exclusively via means of distance communication (e.g. emails or telephone). The tenant argued that the rent increase was equivalent to a distance contract as no personal presence of the parties was required.
Local court judgement: No application of Section 312c BGB
The local court dismissed the tenant's claim and ruled that Section 312c BGB was not applicable to rent amendment agreements. Rent changes in accordance with §§ 558 ff. BGB do not fall under the provisions of distance selling contract law. Similar judgements, such as that of the Gelsenkirchen district court (case no. 202 C 3/16), also rejected the application of distance selling regulations to rental agreements.
Decision of the Berlin Regional Court: Confirmation of the dismissal
The Berlin Regional Court followed the opinion of the District Court and dismissed the tenant's appeal. Here, too, it was argued that the purpose of Section 312c BGB is tailored to traditional mail order and online goods transactions and is not transferable to tenancies. According to §§ 558 ff. BGB, the landlord has a statutory right to rent changes, which is why the regulations on distance selling contracts are not relevant.
Source: Berlin Regional Court
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