Rent index

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In Germany, the rent index is one of the legally provided options for determining the local comparative rent ( § 558 BGB) in privately financed residential construction . It serves as a justification for rent increases and is drawn up by cities (rarely also by larger municipalities) in cooperation with relevant interest groups (these are tenant and landlord associations). The rent index relates spatially to the respective city or municipality. A distinction is made between simple and qualified rent index. There is no obligation to set up a rent index, which is why there is not such an overview for every municipality.

History of the rent index

The rent index was introduced as a justification in the rent increase procedure after criticism of the 1st Housing Dismissal Protection Act. The aim was to concretise the legal concept of the “local comparable rent”. In particular, the literature at the time came to the conclusion that the courts were overwhelmed in individual cases to determine the comparative rent; this had to be done through “objective, empirical” and representative social science studies. In 1974 the rent index was introduced in the 2nd Housing Dismissal Protection Act. The fact that the control of rent rates was already important in the cities in the 19th century is proven, for example, in Berlin by the “Revision Commissions for Estimating the Rent Value of Apartments”.

Structure and content of the rent index

Features to consider

According to Section 558 (2) of the German Civil Code, the characteristics "type, size, equipment, condition and location" must be taken into account. Depending on the local conditions, a rent index contains various categories with different characteristics, which are used to describe the properties of an apartment within the scope of the rent index and which can be used when estimating the usual rent . Such categories and possible characteristics are, for example:

The rent index contains guidelines on how the various properties and features of an apartment are to be assessed and thus affect the rent of a comparable apartment. It is a typical listing of features and rental prices. For an apartment classified according to the intended categories, the rent index then shows the average rent and the rent range on which the rent index is based for an apartment classified in this way. On the basis of a specific apartment offer, it can then be determined whether the rent requested is customary and appropriate for the location or not. As a provider of an apartment, in turn, you can use the rent index to estimate the approximate rent at which you can probably rent the apartment to be offered. In the event of a dispute about a rent increase request, both parties can refer to the rent index to prove the correctness of their own position. The information contained in the rent index also applies in the context of a legal dispute as evidence in the rank of a party opinion , which is subject to free assessment by the court.

In the event of a rent increase, however, a landlord can alternatively determine the comparative rent that limits him using an independent rental database, at least three comparable properties or an expert report, unless the rent index is a so-called qualified rent index.

Range classification

The ranges given in a rent index are regularly supplemented by an aid for range classification. This is a catalog of criteria according to which an apartment is assessed as better or worse than the mean. The highest range corresponds to an apartment for which only the positive characteristics apply, and vice versa. With such a help for the range classification, exceptions can be defined for which a deviation from the stated range is possible. This range classification aids are not part of the official part of a qualified rent index and are quite controversial with their possible point schemes. To classify an apartment, the classification at the time of the rental conclusion can therefore also be used. If an apartment is in a ratio to the mean value of a range when the contract is concluded, the change in the mean value reflects the change in the general rental price development, unless:

  • An exceptionally cheap rent was concluded to end a vacancy.
  • In the meantime, the criteria for classifying the range have fundamentally changed and what was formerly up-to-date is now to be regarded as out of date.

According to the jurisprudence, it is up to a court to decide whether an expert opinion is required for the range classification ; as a presentation by the parties, it can define the questions that a court expert opinion has to answer. In the case of a qualified rent index, an expert opinion must refer to it.

The range classification is not arbitrary. A landlord cannot invoke the highest value without proof because this is also within the range. Such a rent increase request can be formally correct - but has no prospect of confirmation in court.

Ecology in the rent index

In order to eliminate the user-investor dilemma , various municipalities have been trying for a number of years to take energy characteristics into account when classifying the net rent. This is not entirely unproblematic, since a rent index is not an environmental policy instrument, but is intended to reflect market conditions.

Examples:

  • In the Darmstadt rent index from 2003, a so-called thermal quality was introduced as a property feature, which required a precise assessment of the respective building.
  • In 2008, a rent index was introduced in Bochum, which not only takes into account the different energy certificates of the Energy Saving Ordinance , but also individual measures for energy saving.
  • The Berlin rent index 2009 takes into account the energy consumption from energy certificates as a surcharge or discount on rent.
  • The rent index of the city of Regensburg 2010 allows surcharges and discounts of +8 to −7% depending on the required or consumption values ​​from the energy certificate.

Simple rent index

The simple rent index is an overview of the usual rental fees in the municipality or in a comparable municipality, provided that the overview has been created or recognized jointly by the municipality or by representatives of the landlords and tenants (Section 558c BGB).

Qualified rent index

A qualified rent index according to § 558d BGB is if it is drawn up every two years according to scientific principles and recognized by the municipality or by representatives of the landlords and tenants ( e.g. the local tenants' association ). As an exception, it may also be adjusted after two years with the help of the cost of living index for Germany as a whole, before it must be recreated after a total of four years. In the case of a qualified rent index, the legal presumption applies that the rental price ranges stated therein reflect the local comparative rent. But this presumption can be refuted. The main problem here is the question of whether the “recognized scientific principles” required by Section 558d of the German Civil Code (BGB) for setting up rent indexes exist at all. The Federal Ministry of Justice and Consumer Protection is currently working on a new draft bill for a rent index regulation in which these requirements are to be specified.

Legal nature and legal protection against the setting up of rent indexes

Even if it is drawn up by the municipality, the rent index is not an administrative act according to case law. Affected tenants or landlords cannot therefore take legal action against the determination of a so-called simple rent index. You can also neither sue for a rent index to be drawn up at all, nor a rent index with specific content. The preparation of the rent index is therefore a simple administrative act. Only for so-called qualified rent index is this sometimes seen differently in legal literature, without this having had an impact on case law so far (see below). There is basically no legal obligation to draw up a rent index. According to Section 558c, Paragraph 4 of the German Civil Code, however, municipalities should create rent indexes if there is a need for this and this is possible with a reasonable amount of effort. In practice, however, this rule has little effect. Even among the 80 large cities in Germany, there are 13 cities without a rent index (as of December 2018).

criticism

When calculating a rent index, only apartments for which the rent was newly agreed or changed in the last six years may be taken into account. This follows from the definition of the local comparative rent (regulated in Section 558 (2 ) BGB ). The local comparative rent is therefore a mixture of new contract rents and existing rents, provided that a rent increase has been made for the latter. This method of calculation represents a compromise between the interests of the landlord and the tenant. In markets with rising rents, this means that the local comparable rent is regularly set lower than the current market price.

Landlords have an interest in high rents and thus after a standard local comparative rent has been determined, which is as close as possible to the current market rent. For landlords, a short period of time and the greatest possible exclusion from existing rents would be ideal. Tenants, on the other hand, want rents that are as low as possible, so from their point of view the longest possible consideration period or an extensive exclusion of new rental contracts would be optimal. As of January 1, 2020, the observation period was extended from four years to six years. Tenancy associations and, since 2019, the city of Munich have been calling for a time limit to be completely abolished in order to further reduce the local comparative rent compared to the current market rent. Interest groups in the housing industry, however, have already rejected an extension to six years.

Jurisprudence

In some judgments, rent indexes were denied the classification as qualified rent index. In the opinion of Deutsche Wohnen , the compilation of the Berlin rent index 2013 does not correspond to the recognized scientific principles. She has filed a constitutional complaint with the Berlin Constitutional Court against a judgment of the 18th Chamber of the Berlin Regional Court , which recognizes the rent index as legal. The Constitutional Court rejected the complaint. In contrast, the Tagesspiegel reported in April 2019 that the 63rd Chamber of the Berlin Regional Court declared the 2015 Berlin rent index to be illegal. This lacks a sufficient basis for estimation. A subsidiary of Deutsche Wohnen had sued.

literature

  • Aigner, Konrad; Walter Oberhofer; Bernhard Schmidt (1993 b): A new method for creating a rent index using the example of the city of Regensburg . In: Housing Industry and Tenancy Law WM, 1/2/93, pp. 16–21.
  • Aigner, Konrad; Walter Oberhofer; Bernhard Schmidt (1993 a): Regression method versus table method in the creation of rent indexes - theoretical and empirical results . WM, 1/2/93, pp. 10-16.
  • Ulf Börstinghaus , Michael Clar: rent index - problems of creation and application . 2nd edition, 2013, Beck-Verlag Munich. ISBN 978-3-406-62462-9 .
  • Buennemeyer, Jan; Jan Hebecker, Ullrich Werling: To delimit residential areas in the qualified rent index . ZMR magazine f. Tenancy and spatial law 2016, pp. 96-104.
  • Cromm, Jürgen; Uwe Koch: Rent index in Germany - development of rent policy, attitudes and implementation of the cities and local courts with special consideration of the qualified rent index - an empirical study . Hampp, Munich / Mering 2006, ISBN 3-86618-095-0 .
  • Oberhofer, Walter; Bernhard Schmidt: Rent index on the test bench . Comments on the article of the same name by R. Schießl in WM 1/95, pp. 18–21, WM, 3/95, pp. 137–140.
  • Sebastian, Steffen: Reform of rent index and local comparative rent , magazine for economic policy 65/2016, pp. 240-252.

Web links

Individual evidence

  1. ↑ Ulf Börstinghaus: § 558c, 558d BGB. Marg. 1-3. In: Schmidt-Futterer. Tenancy law. 9th edition 2007.
  2. ↑ 2. Housing Dismissal Protection Act (WKSchG) of December 18, 1974. Federal Law Gazette I, pp. 3603, 3604.
  3. ↑ Municipal authorities . In: Berliner Adreßbuch , 1880, IV. Th., P. 60.
  4. ↑ City Beh. In: Berliner Adreßbuch , 1875, IV.Th., p. 78.
  5. ↑ Archived copy ( Memento from August 12, 2011 in the Internet Archive )
  6. ↑ See Artz, in: Munich Commentary on the BGB, Bd. 3, 4th edition 2004, § 558d BGB marg. 2 m. w. N.
  7. ↑ Interview rent index expert "Obsolete methods": Why many rent indexes don't protect tenants - and what has to change. Retrieved November 4, 2019 .
  8. ↑ BVerwG NJW 1996, 2046 = ZMR 1006, 449 = JZ 1996, 449 with a critical comment from Huber, 893
  9. ↑ Steffen Sebastian and Friedrich Lammers (2019): gif-Mietspiegelreport 2019, p. 2, https://www.gif-ev.de/_doc/file/download,26014 .
  10. ↑ OB Reiter announces real rent index for Munich, press release of the City of Munich from 02.26.2019. Retrieved October 29, 2019 .
  11. ↑ Law on the extension of the observation period for the local comparative rent. Retrieved October 29, 2019 .
  12. ↑ Berlin rent index Constitutional Court rejects complaint from Deutsche Wohnen, Berliner Zeitung of January 7, 2019. Accessed November 4, 2019 .
  13. ^ Regional court overturns Berlin rent index. Retrieved April 12, 2019 .