Rent guarantee
With the rental guarantee the issuing assumes guarantee the liability for the payment of a lease on residential premises or premises agreed between landlord and tenant rent.
General
The rental guarantee must not be confused with the rental guarantee , which is a rental security according to Section 551 (1) of the German Civil Code for residential rentals. This rent security, usually provided by cash deposit, may not exceed three times the rent for a month without the operating costs shown as a flat rate or as an advance payment (Section 551 (1) BGB). The cash deposit must be paid by the tenant when the rental agreement is concluded; it can be replaced by a rental guarantee from a bank or a rental deposit insurance from an insurer. The cumulative landlord's lien , which is not a deposit, is independent of this .
purpose
The rent guarantee, on the other hand, serves to secure the risk of loss of rent , which the building owner bears in the context of a builder model , developer model or general contractor and general contractor model . The client does not move into the condominium or the single-family house as owner -occupier himself, but has them rented out by the building supervisor . In order to relieve the client of the rent default risk that is usually present, the rent default risk can be covered by third parties (such as banks , insurers ) in the form of a rent guarantee. The creditworthiness of the credit institute / insurer should give the builder the opportunity to fall back on them if the tenant cannot pay the rent.
The term of such a guarantee is usually five years, ten years or other periods are rare. The guarantee commission for the rental guarantee is included in the purchase price and is financed by banks as part of the construction financing when the property is acquired as full financing - together with all other ancillary costs . The rent guarantee itself is the main selling point for property acquisition by the builder, because the guaranteed rent guarantees a certain rental return . With the rent guarantee, the buyer does not have to bear the economic risk of falling rent prices and vacancies in the guaranteed period.
Legal issues
The rent guarantee is intended to secure a tenant's obligation to pay rent under Section 535 (2) of the German Civil Code. According to this, the tenant is obliged to pay the landlord the agreed rent when it is due ( Section 556b (1) BGB). To secure this rental payment obligation, the tenant is also obliged to provide rental security in accordance with Section 551 (1) of the German Civil Code (BGB), which may amount to a maximum of three times the monthly rent (excluding the operating costs shown as a lump sum or advance payment). The guarantor guarantees that the landlord actually receives the contractually agreed rent; The rental guarantee thus protects the tenant's credit risk and the risk of vacancy .
The guarantee contract is not regulated in the BGB, but is permissible according to § § 311 Paragraph 1 BGB, § 241 Paragraph 1 BGB. The BGB provisions on the guarantee cannot be applied analogously to the guarantee; rather, the rest of the law of obligations applies analogously .
Since the rental guarantee does not necessarily have to be a credit institution or an insurer within the scope of the freedom of contract , non-banks can also act as a rental guarantee. This can result in a payment risk for the building owner benefiting from the rental guarantee in the event of a guarantee because the creditworthiness of the rental guarantee can be doubtful.
Legal consequences
The guarantee case occurs in the case of rental guarantees if the tenant does not or not fully meet his rent payment obligation when due. In the rental guarantee, it can be agreed that, in the event of a guarantee, the rental security must first be used before the guarantor pays under the rental guarantee. The lessor may only request the guarantee amount if the main secured liability exists and the collateral event agreed or assumed by the contracting parties has occurred. Then the landlord only has to assert what was the payment condition of the guarantee (so-called formal guarantee case ). Furthermore, the landlord must prove the conclusiveness of the main claim (so-called material guarantee case ). He has to prove that the rent claim secured by the guarantee is due. If the prerequisites are met, the landlord may claim the credit institute or the insurer from the given rental guarantee for a cash payment.
Then the guarantor is obliged to make payment under the guarantee . With the payment, the guarantee is based on a claim for reimbursement of expenses from § 670 BGB, so that the guarantor is entitled to a claim against the insolvent tenant.
Rental guarantee
The Federal Court of Justice (BGH) differentiates between rental guarantee and rental guarantee. In the case of a rental guarantee, the guarantor assumes the risk of a rental receipt of a certain amount. If the rental entrance is not reached, the guarantor has to vouch for the missing difference. It does not matter what this lower yield is due to. In particular, the guarantor is also liable in the event of the tenant's bankruptcy . In contrast, in the case of a “rental guarantee”, the guarantor assumes the risk of letting the property at a certain rental price. He is particularly liable if no tenant is found. However, if the property is rented and the tenant becomes insolvent, the guarantor is not liable in the case of a "rental guarantee".
Actual rental guarantee
In social law , the standard requirement in accordance with Section 27a, Paragraph 1 of Book XII of the Social Code also includes accommodation , whereby the rent is to be covered by direct payment to the landlord or other person entitled to receive benefits at the request of the person entitled to benefits (rent and cost assumption declaration; Section 35, Paragraph 1 of Book XII) . The Federal Administrative Court (BVerwG) sees this as an obligation of the social welfare office to pay the rent in the future, which would amount to a public-law “rent guarantee”.
Individual evidence
- ↑ Dieter Jacob / Constanze Stuhr, Financing and Accounting in the Construction Industry , 2013, p. 84
- ↑ BGH NJW 1967, 1020
- ↑ cf. BGH NJW 1984, 2456 , 2457
- ↑ BGH NJW 1997, 1435
- ↑ Friedrich Graf von Westphalen / Brigitta Zöchling-Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113
- ↑ BGH, judgment of March 13, 2003, Az .: IX ZR 199/00 = NJW 2003, 2235
- ↑ BVerwG NJW 1994, 2968
