Home contract

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In German law, the home contract is a contract between an entrepreneur (home provider) and an adult consumer (home resident), in which the entrepreneur undertakes to provide living space and to provide care or support services that are required to cope with one caused by age , need for care or Serve disability- related need for help.

The home contract is intended to protect older people, those in need of care or disabled people of age from disadvantages and thereby support them in leading a life that is as independent and self-determined as possible.

Until September 30, 2009, the home contract was regulated in the Home Law. From October 1, 2009, residential contracts will be subject to the Housing and Care Contract Act (WBVG). For home contracts concluded by September 30, 2009, the new law has been in effect since May 1, 2010. The old contracts had to be adapted to the new law during the transition period if necessary.

Definition of a home contract

The term "home contract" is derived from the old definition in the Home Act, according to which a home contract was only available for accommodation in a classic old people's home , nursing home or home for the disabled . This restriction has been lifted with the new law. A home contract always exists if the contract stipulates the provision of living space together with the provision of care or support services, whereby these services must go beyond general support services (e.g. for service living ). Immediate provision is not necessary; it is sufficient if the entrepreneur undertakes in the contract to provide the corresponding services in the event of the consumer's health deteriorating.

In the living room there can be both a room in a home, as well as an apartment or a place in a residential community action. It is only important that the provision of living space is expressly linked to the use of care and support services and that these services cannot be terminated again independently of the residential rental contract, regardless of whether it is a single contract or two separate contracts. The fact that living space and care are provided by two different entrepreneurs is also not detrimental to the classification as a home contract, provided that the entrepreneurs are legally or economically linked; the burden of proof lies with the entrepreneur.

Contracts that regulate care and support in a hospital or a rehabilitation facility, in boarding schools run by the vocational training and professional development organizations , in youth welfare facilities or in spa and convalescent homes are not considered to be home contracts .

Information requirements

The entrepreneur must inform the consumer about his range of services in good time before concluding the contract. In particular, the following must be informed:

  • in highlighted form about the equipment and location of the building in which the living space is located, as well as the communal facilities and facilities to which the resident has access and, if applicable, their terms of use,
  • about the services contained therein according to type, content and scope,
  • about the care notes from the long-term care insurance that the home received
  • the service concept on which the nursing or care services are based,
  • about the requirements for possible changes in services and remuneration,
  • in highlighted form if the entrepreneur wishes to waive his legal obligation to offer an adjustment of the services in the event of a change in the care and support needs and what consequences such a contractual clause has.

If the entrepreneur violates the above-mentioned information obligations, this means that the consumer can terminate the home contract at any time without notice. If necessary, claims for damages can result from failure to provide or even incorrect information. ( Section 3 (4) WBVG)

Contract duration

The home contract is concluded for an indefinite period. The agreement of a time limit is only permitted if the time limit does not contradict the interests of the home resident (e.g. in the case of short-term care facilities ). In the case of an impermissible time limit, the contract is valid for an indefinite period. The home resident can, however, refer to the time limit by declaring to the home provider within two weeks of the end of the agreed contract period.

The contract ends when the resident dies. In the case of residential home contracts with residents who do not receive any benefits from social long-term care insurance ("self-payers"), it can be agreed that the home contract will not end until two weeks after the day following the day the resident died. Such a contractual clause is, however, inadmissible and ineffective in home contracts with recipients of social long-term care insurance.

In order to ensure that as many home contracts as possible become valid, the legislature has stipulated that a home contract concluded with a person incapable of doing business can also be subsequently approved by a legal representative. To the extent that services have already been provided, the contract remains effective in any case, even if the legal representative does not later agree to the conclusion of the contract. As long as the approval is not available, the entrepreneur can only terminate the home contract for good cause. ( Section 4 (2) WBVG)

Formal requirements

The written form is required by law for a home contract . A copy of the contract is to be given to the consumer.

A residential home contract that has not been concluded in writing is effective, but those contractual provisions that deviate from the statutory provisions to the detriment of the resident are ineffective, even if they are permitted by other statutory provisions. The home resident can terminate a home contract that has not been concluded in writing at any time without observing a notice period. If the written contract was not concluded in the interests of the resident, in particular because at the time the contract was concluded, the resident had reasons that prevented him from submitting his contract declaration in writing, the written contract must be concluded immediately.

The contract must contain at least

  • a description of the individual services of the home provider according to type, content and scope,
  • the details of the fees to be paid for these services, separately according to
    • Provision of living space, care or support services,
    • Meals, if these are part of the care services,
    • the individual further services,
    • the costs that can be calculated separately as investment costs according to the rules of long-term care insurance, and
    • the total remuneration .

The information about the range of services must be named in the home contract as a contractual basis and possible deviations from the pre-contractual information must be separately identified.

The agreement of a rental deposit is permitted, provided that it is not a care home and the consumer does not receive any help in facilities according to SGB XII. The deposit may not exceed twice the monthly salary. The consumer has the right to pay the rental deposit in three installments or to provide security in the form of a bank guarantee . Under no circumstances may a deposit be agreed for the care rate. ( § 14 WBVG)

Contract type

The aim of consolidating the resident's legal position is pursued with various instruments: information obligation of the institution; Conclusion of a contract; Description of services and remuneration; Appropriateness of remuneration and services; Protection against dismissal; Fee increase regulation. The home contract is to be viewed as a private law contract; therefore the civil courts are competent for disputes .

Contract adjustment

In the case of contracts that, like the home contract, represent a permanent obligation, there may be U. a reason to adjust individual contractual services due to changes in the underlying conditions. This applies in particular to the resident's state of health (e.g. higher level of care ). In this case, the home provider must adapt the services and offer the resident the necessary contractual changes. The consumer is to be given a reasonable period of reflection and a comparison of the services and costs is to be handed over to him. ( Section 8 (3) WBVG) In the case of self-payers, changes can only be made by changing the contract on both sides; the consumer can therefore refuse the adjustment of the services, which can then constitute a reason for termination. In the case of recipients of long-term care insurance benefits or assistance in institutions, the entrepreneur can also unilaterally adjust the benefits against the will of the consumer. ( Section 8 (2) WBVG)

The entrepreneur can exclude the obligation to adapt the services in advance by means of a separate agreement when the contract is concluded for the first time if the entrepreneur has a legitimate interest in doing so, taking into account the service concept. ( Section 8 (4) WBVG) The agreement, like the home contract itself, must be in writing and must be clearly highlighted in the home contract. In practice, such an agreement is found almost exclusively in outpatient services (e.g. residential groups that are not barrier-free and therefore cannot accept physically disabled people).

The entrepreneur can also adapt the contract if the calculation basis changes and the fee increases as a result. This is the case, for example, when a new service agreement is concluded with the responsible social service providers or generally when the personnel and operating costs increase. ( Section 9 (1) WBVG) The consumer must be informed in writing at least four weeks prior to the increase in the fee and the basis for the calculation must be disclosed, with the consumer also being given access to the home's operational calculation documents if he so requests. ( Section 9 (2) WBVG)

Poor performance

In the event of poor performance , the consumer can reduce the payment of the fee or, in the case of serious defects, even stop it altogether, possibly also retrospectively for up to six months. ( Section 10 (1) WBVG) If the defect is due to the living space (e.g. defective heating), the consumer is obliged to notify the entrepreneur about the matter immediately. ( Section 10 (2) WBVG) A breach of the notification obligation has the consequence that the right to reduce the fee is excluded. ( Section 10 (3) WBVG) If the long-term care insurance company has already reduced the benefits in accordance with Section 115 (3) SGB XI due to poor performance , the consumer cannot reduce the fee for the same reason; however, a reduction due to other deficiencies (e.g. the long-term care insurance fund has cut the benefits due to insufficient care, but there is also a deficiency in living space) is still possible. ( Section 10 (4) WBVG)

In the case of recipients of long-term care insurance benefits or assistance in institutions, the reduction amount is due to the social benefit providers; the consumer has to repay the payments made by the social service providers if the reduction amount exceeds the own contribution. ( Section 10 (5) WBVG)

Termination of the home contract

The home resident can properly terminate the contract in writing no later than the third working day of a calendar month to the end of the same month.

An extraordinary termination without notice for an important reason is possible if the resident cannot reasonably be expected to continue the contract until the end of the notice period. A right to extraordinary termination also exists in the event of a pay increase at any time at the point in time at which the home provider requests the pay increase.

The resident can terminate the contract at any time within two weeks of the start of the contractual relationship without observing a notice period. If the resident is only given a copy of the contract after the start of the contractual relationship, he can also terminate it up to two weeks after the handover.

The home carrier can only terminate the home contract if there is good cause. The termination must be in writing . Important reasons for a termination on the part of the home owner can be of an objective nature (e.g. cessation or change of the home operation - notice period: one month) or subjective nature (e.g. culpable gross violation of the contract by the resident - no notice period). A termination due to a payment arrears is not permitted if the carrier is satisfied beforehand. A termination for the purpose of increasing the fee is not permitted.

Individual evidence

  1. ↑ Justification of the draft of the parliamentary groups of the CDU / CSU and SPD for the law to revise the civil law provisions of the Home Act after the federalism reform , German Bundestag printed matter 16/12409 (PDF; 610 kB), p. 10
  2. ^ Text of the Housing and Care Contract Act of July 29, 2009, Federal Law Gazette I, pp. 2319–2324.
  3. ↑ § 17 WBVG
  4. ↑ § 2 WBVG
  5. ↑ Section 4 (3) sentence 3 WBVG
  6. ↑ § 87a Paragraph 1 Sentence 2 Alt. 2 SGB XI, judgment of the Federal Administrative Court of June 2, 2010, Az .: 8 C 24/09
  7. ↑ Section 6 (1) sentence 1 WBVG
  8. ↑ § 82 paragraph 3 and 4 SGB XI
  9. ↑ § 8 WBVG
  10. ↑ § 12 WBVG

literature

  • Michael Drasdo: The Housing and Care Contract Act. NJW 17/2010, 1174
  • Michael Drasdo: Home contracts under the Housing and Care Contract Act. , NJW-Spezial 10/2011, 289
  • Michael Drasdo: The public law influences on the new law home contract. , NJW-Special 08/2012, 225
  • Commentary on the WBVG In: Palandt -Weidenkaff: Bürgerliches Gesetzbuch. Commentary on the German Civil Code with subsidiary laws. 70th edition. Munich 2011, ISBN 978-3-406-61000-4

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