Rent exuberance

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Rent usury is a legal term and describes a special case of usury . Its importance lies in both criminal and civil law . The fact that the rent is exorbitant is usually present when the agreed rent exceeds the local comparable rent by more than 50% (in the commercial sector, case law is more inconsistent, and an excess of 100% is often mentioned as a criterion). Such a high rent is “noticeably disproportionate” to the landlord's performance.

In addition, there must be a predicament on the part of the tenant, which the landlord exploited to achieve an excessive rent.

Rental usury is punished with a prison sentence of up to three years or a fine, in particularly serious cases with a prison sentence of up to 10 years ( § 291 StGB ). In addition, the prohibition of excessive rent increases in accordance with Section 5 of the Economic Criminal Act (WiStG) applies. According to this, there is an administrative offense if the rent exceeds the local comparable rents by more than 20% due to the utilization of a small amount of comparable living space.

Under civil law , usury in Germany is a particularly regulated sub-case of immoral legal transactions in Section 138 (2) BGB . This regulation states:

§ 138 BGB
(1) A legal transaction that offends against morality is void.
(2) In particular, a legal transaction through which someone, exploiting the predicament, inexperience, lack of judgment or the considerable weakness of will of another, promises himself or a third party pecuniary advantages for a service is void, which in a conspicuous disproportion to the Performance.

In this case, agreements regarding the rent are ineffective if the tenant can prove that he was in a predicament when he rented the overpriced apartment. In addition, the tenant may refuse the landlord to pay the rent until the respective amount has been adjusted. The tenant can also claim back the overpaid rent. The repayment claim expires after four years. In addition, the rental contract remains effective in all other points.

Current case law

A predicament that has led to the renting of an overpriced apartment can no longer be automatically accepted according to the current case law of the Federal Court of Justice , but must be checked and proven in each individual case.

As a criterion for a predicament, the Federal Supreme Court tightened the fact that there must be a shortage in the entire city or municipality, not only in the district in which the (overpriced) apartment was rented. In the opinion of some tenants' associations , the fact that the rent is exorbitant is practically "undone", at least in the case of new leases, since it can practically no longer be proven.

The BGH has confirmed its case law on the immorality of commercial space rents. If the agreed rent in a commercial lease is 100% higher than the local comparative rent, it can be immoral according to Section 138 (2) BGB.

Web links

Individual evidence

  1. ↑ cf. BGH judgment of January 28, 2004 , Az. VIII ZR 190/03; WM 04, 294; GE 04,540.
  2. ^ BGH judgment of April 13, 2005 , Az. VIII ZR 44/04.
  3. ^ BGH judgment of July 23, 2008 , Az.XII ZR 134/06, full text.