Rental security

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In Germany's rent deposit , commonly known deposit , the performance of a sum of money by the tenant to his landlord to secure from the tenancy arising demands of the landlord ( rent , utilities and repair services upon termination of the lease, compensation for use , damages , legal costs refund claims). In the case of price-linked living space, only the protection of claims from neglected cosmetic repairs and damage is permitted ( Section 9 (5) sentence 1 WoBindG ).

General

Rental contracts are long-term contractual obligations in which the tenant's obligation to pay rent remains in place over a long period of time. During the rental period, the landlord can therefore face a risk of loss of rent if the tenant can no longer pay the rent in whole or in part ( credit risk in the event of insolvency ) or no longer wishes to pay ( tenant nomads with unwillingness to pay ) while the landlord continues to make the rented rooms available. There are various ways of reducing risk for the landlord , the most important of which is rent security.

Legal framework

The tenant is not legally obliged to provide rental security, but it is usually agreed. Such an agreement is ineffective according to Section 1, Paragraph 3, Section 16 of the New Construction Rent Ordinance (NMV) only for apartments that have been funded with housing welfare funds for members of the public service. If the rental security is not paid, the landlord cannot terminate the tenancy without notice. He must assert the rent security in court.

According to tenancy law , the following legal restrictions must be observed for living space when determining the rental security:

  1. The amount of the security is limited to three times the basic rent for residential tenancies and the tenant is entitled to make this in three equal monthly installments (starting with the beginning of the tenancy).
  2. Until the tenancy law reform came into force in 2001, the rent security could only be invested as a savings deposit with a three-month notice period and the usual interest rates. The rent security regulated in § 551 BGB can now also be invested in other forms of investment if both parties to the rental agreement are in agreement. The tenant is entitled to the income.

Exceptions

These legal regulations do not apply to commercial tenancies. In this case, the security can be freely negotiated between the tenants. Both the amount of the rental deposit and the interest can be freely selected. If the contract does not explicitly state a non-interest on the rent security, this must be paid interest.

Types and amount of security

Rent security (generic term) can be provided in different ways depending on the agreement between the parties. The (cash) deposit, pledging, assignment of security , surety and the deposit policy come into consideration. Every security deposit by the tenant towards the landlord has the character of a trust. This serves the landlord as security for all claims arising from the tenancy against the tenant or arising when the tenant moves out, in particular arrears in rent, claims from operating or ancillary cost bills, claims for compensation for damage to the rented apartment or compensation for cosmetic repairs not carried out, if the tenant is obliged to do so.

The landlord has the right to determine how the deposit paid by the tenant is offset against claims arising from the tenancy. Nonetheless, claims by the landlord against the tenant that do not arise from the tenancy may not be offset against the deposit without a special mutual agreement.

It should be noted that the total amount of the rent security according to § 551 Paragraph 1 Clause 1 BGB for residential rentals may not exceed three times the basic rent for one month - without the operating costs shown as a lump sum or as an advance payment, even if different types of collateral are used (prohibition of accumulation). If z. If, for example, a rent guarantee is agreed in addition to the payment of a deposit of three months' rent for apartment rents, the surety is entitled to the defense of first obtaining satisfaction from the deposit paid ( Section 768 (1) sentence 1 BGB). If the apartment is rented warm at a fixed price , the estimated cost share must be deducted from the warm rent according to the new regulation of §551 BGB.

Cash deposit

A cash deposit is agreed if the tenant is obliged under the rental agreement to hand over a certain amount of money to the landlord or to pay it into a landlord's account. The landlord has to manage these funds separately from his other assets. He has to invest them insolvency-proof and interest-bearing (the latter does not apply to youth and student residences) ( § 551 Paragraph 3 BGB). The tenant may therefore make the payment of the deposit to the landlord dependent on the naming of an insolvency-proof account.

However, the cash deposit is not protected against actual misuse by the landlord.

The landlord, as trustee, is obliged to forward the bank's certificate of the withholding tax withheld to the tenant and to settle the interest received upon termination of the lease.

Pledging

Rent security through pledging can be agreed, for example, through the usual pledging of a savings credit, but also z. B. Securities or other investments such as a loan or a building society loan agreement can be pledged.

When pledging a savings credit, the tenant pays the amount of the rental security into a savings account made out in his name ("rental deposit savings book"). With this he pledges his right to the savings claim by handing over the savings book to the landlord. The prerequisite for this is the creation of a real lien on the part of the landlord to the savings claim (and not just a legal obligation) and the declaration of the pledge to the bank when this savings account is created.

From the tenant's point of view, this has the advantage that the "segregation of assets", interest rates and insolvency resistance are guaranteed at all times.

The pledging of postal savings accounts according to Section 23 (4) sentence 2 PostG old version was inadmissible during its validity (“old version” = “old version”), but is now obsolete.

Assignment of security

Alternatively, a savings claim according to Sections 398 ff. BGB are assigned to the landlord as security. No notification to the bank is required for this.

guarantee

In the case of the rent guarantee, third parties, in particular credit institutions within the framework of the guarantee credit and insurance companies within the rent deposit insurance , are responsible for the fulfillment of the tenant's obligations under a rental agreement. The rent guarantee is a security deposit that may be issued in commercial form by credit institutions and insurance companies as well as by third parties. The assumption of guarantees of any kind by credit institutions is a banking transaction according to § 1 No. 8 KWG ( rental guarantee ), the deposit insurance is an insurance for the account of a third party according to § 43 VVG . According to the legal definition of Section 43 (1) VVG, the policyholder can conclude an insurance contract in his own name for someone else. The "other" is the beneficiary from the surety / guarantee to whom the rights from the insurance contract are entitled ( Section 44 (1) VVG), but are overlaid by the legal relationship from the surety.

As part of the rental guarantee (less often: rental guarantee), guarantors undertake to take responsibility for the tenant's liabilities resulting from the rental relationship within the framework of Section 551 BGB (for rental apartments ). If the rental guarantee neither banks nor insurance, but by the third non-banks acquired business, it is called a living guarantee . This has been offered for the first time since December 2008 by the "Deutsche Kautionskasse". In practice there are also two other guarantors in particular. In the commercial sector, parent companies within a group take on the rental guarantee for their subsidiaries and in the private sector, if the creditworthiness of the actual tenant is insufficient. In this case, however, the statutory upper limit of security also applies, because the landlord is not allowed to demand both a guarantee and a cash security (prohibition of accumulation). An exception applies, however, if a third party provides a guarantee so that a rental agreement can even come about .

In principle, tenants and landlords have freedom of contract in the individual design of a guarantee. The guarantee conditions take into account the legal requirements of tenancy law, the individual rental contract conditions and the conditions of the respective guarantor. The recognized typical guarantee conditions include in particular:

  • the surety does not have to check the occurrence of the surety case,
  • Payment of the guarantee upon first request (the landlord does not have to prove that the tenant has arrears),
  • the payment is made immediately after the due date.

The rent guarantee saves the tenant liquidity and enables him to freely use his liquid funds instead of depositing them as rent security. The banks charge a guarantee commission for their effort and, above all, for their credit risk .

So-called "directly enforceable guarantees", as they are occasionally required in addition to the deposit to be paid for residential property, usually without a specific form and only with a simple signature from the surety, usually only have a declaratory character about the seriousness of fulfilling the rental obligations. A claim by the landlord does not arise for the guarantor in the case of residential rents, since the formulations often refer to more than three months' cold rents, are required in addition to the deposit (ie in both cases violate the "prohibition of accumulation", i.e. substantial Violate tenancy law), are too indeterminate or do not have essential provisions for their enforceability.

Deposit policy or rental deposit insurance

Main article: Rental deposit insurance

A deposit policy or rental deposit insurance is an insurance contract, the subject of which is a rental security deposit to secure a tenancy. In return for annual payment of an insurance premium, it releases the tenant from the usual deposit of a rental deposit in a deposit account or savings book. The amount of the rent security is limited to three times the net rent and is noted in the deposit policy. As a document of a contract between the insurer and the tenant, the deposit policy is deposited with the landlord and is considered evidence of the existing insurance coverage.

If the tenancy ends without the landlord making claims for damages from the tenancy, the insurance will be canceled again. However, should the landlord assert claims for payment of the rent deposit, the landlord receives his money as a guarantee payment from the insurance benefit, which in turn obliges the tenant to repay the rent deposit amount as stipulated in the contract.

The deposit policy cannot be attached and protects the landlord's claims against a possible attachment of a deposit account by third party creditors according to the current legal situation . For the landlord, this means that he can enforce his claims for payments from rent arrears, repair work or missing reimbursement of additional costs regardless of third-party claims.

A prerequisite for a deposit policy is a sufficient credit rating . The tenant pays an annual insurance premium for the deposit policy. If, on the other hand, the tenant pays the deposit himself and invests it e.g. B. in securities that he pledged to the landlord (see above under "Pledging"), the income from the deposit accrues to the tenant.

Landlord's lien

The landlord's lien is a rental security provided by the landlord for claims from the tenancy that do not require an agreement. Rather, it arises by virtue of the law when the items are brought in ( Section 562 (1) BGB) and can expire again when they are removed ( Section 562a BGB). However, the landlord's lien can be excluded in the rental agreement. The tenant can avert the assertion by providing security ( § 562c BGB). Objects that cannot be seized are excluded from the landlord's lien (Section 562 (1) sentence 2 BGB, Section 811 ZPO).

It differs from the rental deposit in particular in that the landlord can make unrestricted use of the landlord's lien during the current tenancy - and not only because of undisputed or legally established claims.

The landlord's lien is of practical relevance, for example, when clearing Berlin and renting business premises. When it comes to renting a home, its security function usually takes a back seat to the deposit.

Takeover by service providers

For service recipients, service providers can provide the rental deposit as a loan under the conditions of Section 22 (6) SGB II: "Expenses for a rental deposit and for cooperative shares should be paid as a loan." The job centers try to repay rental deposit loans against the standard requirement to be offset. This regularly leads to a long-term shortfall in demand. The courts have opposed this practice since 2006. The Federal Social Court (BSG) ruled in 2015 that the job center was not allowed to withhold the repayment installments for the rent deposit loan (Federal Social Court, decision of June 29, 2015, Az. B 4 AS 11/14 R).

Time of performance

Even if the tenant and landlord expressly agree when concluding a rental agreement that the rental security must be provided in full at the beginning of the tenancy, the tenant has the right to provide the security in three monthly installments. This was decided by the Lüneburg district court. The Lüneburg judges stated that the legal regulation in Section 551 (2) sentence 1 of the German Civil Code, which enables the tenant to pay in installments, was mandatory and could therefore not be circumvented through contractual agreements. The tenant must therefore pay the first installment at the beginning of the tenancy and the two subsequent installments in the following months.

The contractually agreed rental deposit can always be paid in three monthly installments, regardless of whether it is a cash deposit or a pledged savings account. Any other contractual agreements are ineffective.

An important reason for an extraordinary termination without notice by the landlord is if the tenant is in default with a security deposit in the amount of two times the monthly rent.

The rental contractually agreed claim of the landlord to payment of the rental security (deposit) is subject, like all claims, to the statute of limitations. The standard statute of limitations of three years according to Section 195 of the German Civil Code, which, according to Section 199 (1) of the German Civil Code, begins at the end of the year in which the claim arose. The limitation period does not start with the expiry of the rental period.

Time and amount of repayment

With the termination of the lease, the tenant has a basic right to repayment of the rent security, provided that there are no contractual claims of the landlord to the contrary; the landlord must determine and assert this within a reasonable (not generally determinable) period. A period of 3 to 6 months is assumed to be reasonable ; if operating costs are still outstanding, the annual period applicable to this can also apply. In the case of a living space rental, the rental deposit can be used to secure claims by the landlord against damage caused by the tenant or to secure expenses for neglected cosmetic repairs. This also applies if the landlord's claims are in dispute. Additional claims to be expected from the tenant, which result from outstanding statements of operating costs, can also justify the withholding of part of the rental deposit.

Otherwise, the rental security including the interest paid must be paid back to the tenant. When the tenant receives the statement of the rental deposit, the repayment claim becomes due.

If the landlord violates the investment obligation with regard to the rental security, the tenant has a claim for damages under §§ 280 Paragraph 1, 551 Paragraph 3 BGB for the interest income. The amount of damage is basically determined by the interest income that would normally have been earned if the rental security had been properly invested. If the tenants have agreed on a different form of investment for the rental security, the damage to be compensated is that which would have occurred if the investment had been made as agreed.

If the landlord changes, for example when selling a building, the new landlord assumes all rights and obligations with regard to the rent security provided ( Section 566a ). An exception applies here if the new landlord is insolvent and thus unable to repay the rent security. In this case, the tenant has the right to demand the rental security from the old landlord.

Web links

Individual evidence

  1. ↑ a b Tenancy Law: Deposit in the "Tenancy Law Lexicon". Retrieved August 27, 2014
  2. ↑ How high can the rental deposit be? Retrieved June 16, 2017 .
  3. ↑ BGH, judgment of October 13, 2010 - VIII ZR 98/10 [1]
  4. ↑ § 34 Paragraph 1 and 3 of the Tax Code
  5. ^ LG Frankfurt / Main, judgment of October 30, 2006, Az .: 2/11 S / 05, PE 2009, 8
  6. ^ BGH, judgment of June 7, 1990, Az .: IX ZR 16/90, WuM 1990, 343
  7. ↑ Landlord's Lien - Requirements, Exercise and Realization November 14, 2015.
  8. ↑ Michael Kunkel: Securing open claims with landlords' liens Immobilienmagazin 2015, pp. 42–44.
  9. ↑ Stefan M. Moericke: The landlord's lien: How can the landlord seize the tenant? May 8, 2018.
  10. ↑ § 22 Paragraph 6 SGB II
  11. ↑ Federal Social Court, decision of June 29, 2015, Az. B 4 AS 11/14 R
  12. ↑ LAG Schuldnerberatung Hamburg: BSG: Offsetting of rent deposit loans in relation to SGB II is not permitted. 20th July 2015
  13. ↑ Regional Court Lüneburg Az. 1 S 116/99.
  14. ↑ BGH Az. VIII ZR 344/02.
  15. ↑ District Court Jena Az. 22 C 962/98, WM 2000, 211.
  16. ↑ § 569 paragraph 2 a BGB
  17. ^ LG Duisburg, judgment of March 28, 2006, 13 S334 / 05, WuM 2006, 250
  18. ^ LG Darmstadt, judgment of July 3, 2007, 4 O 529/06, NZM 2007, 801
  19. ↑ KG, decision of March 3, 2008, 22 W 2/08, ZMR 2008, 624
  20. ↑ BGH judgment of July 24, 2019 (VIII ZR 141/17) .
  21. ↑ BGH, judgment of July 24, 2019, VIII ZR 141/17, margin no. 26th
  22. ↑ BGH, judgment of January 18, 2006, AZ VIII ZR 71/05 (PDF; 84 kB).
  23. ↑ BGH, judgment of July 24, 2019, VIII ZR 141/17, guideline c).
  24. ↑ [2] , LG Waldshut-Tiengen, judgment of November 10, 2015, Az. 2 S 37/11
  25. ↑ [3] , "Change of landlord" in the information desk of the German Rent Deposit Association