Modernization levy

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In residential tenancy law, the modernization levy describes a form of rent increase after modernization has been completed . It has been regulated in Germany since 2001 in § 559 BGB . Thereafter, after carrying out individual modernization measures , the landlord can permanently increase the net rent by a certain percentage of the costs incurred for the apartment in order to refinance his investments. At the same time, the percentage limitation is intended to protect tenants from excessive rent increases.

Legal development

Section 3 of the Rent Amount Act (MHG) introduced the option of modernization levy on January 1, 1975. Initially, the levy was 14% and was thus not very far above what the landlord had to pay the bank as loan interest for taking out a loan to finance the measure. During the term of the law, the surcharge was reduced to 8%. Under modernization , Section 3 (1) MHG understood the implementation of structural measures that sustainably increase the utility value of the rented property, improve general living conditions in the long term or bring about sustainable savings in heating energy or water. Other structural changes due to circumstances for which the landlord was not responsible also justified a corresponding rent increase.

On September 1, 2001, the MHG was repealed and the regulations on rental and lease contracts, including the law on rent levels and rent increases, were integrated into the German Civil Code (§§ 535 ff. BGB). Since then, § 559 BGB has regulated rent increases in the event of modernization. The amount of 11% was retained and the definition of modernization from Section 3 (1) MHG was adopted.

With the Tenancy Law Amendment Act of March 11, 2013, the apportionable measures in Section 559 (1) BGB in conjunction with Section 555b BGB were listed individually and Section 559 (2) BGB was also revised. According to this, costs for maintenance measures ( § 555a Paragraph 1 BGB) are to be deducted from the costs of modernization. It is enough to find them by estimation . In concrete terms, this means: There are no excessive demands to be made when determining the costs to be deducted.

Also new was the regulation of § 559 Paragraph 4 BGB, according to which the rent increase should be excluded if it represents a particular hardship for the tenant. The operating costs incurred must also be taken into account.

However, the prerequisite for taking this hardship reason into account is that the tenant asserts it in good time within the deadlines of § 555d Paragraphs 3 and 4 BGB - d. H. usually by the end of the month following receipt of the modernization declaration.

The tenant cannot prevent the modernization himself because of the economic hardship - but can prevent the subsequent rent increase.

Since January 1, 2019, the landlord can only increase the annual rent by 8% of the costs for modernization measures for the apartment.

Calculation example: modernization costs = 1000 euros.
1000 x 8: 100: 12 = EUR 6.67 rent increase per month.

requirements

Modernization measures within the meaning of Section 555b No. 1, 3, 4, 5 and 6 of the German Civil Code are eligible for allocation .

A formal requirement is a written and explained calculation of how the rent increase is composed. The landlord must notify the rent increase in writing. The declaration is only effective if it contains a cost calculation including the necessary explanations ( Section 559b (1) BGB). Defects in the declaration lead to the declaration being ineffective; the rent increase declaration can be made up at any time.

The following requirements must be met:

  • comprehensibly calculated amount of the increase
  • Identification of the total costs incurred
  • Breakdown of the costs for the individual construction measures
  • Breakdown of the costs of modernization and repair / maintenance
  • Distribution key if several apartments have been modernized.

The tenant has the right to inspect the documents on which the calculations are based. The apportionable costs of modernization do not include:

  • Interest on Loans
  • administrative expenses
  • Development costs for road construction measures
  • Loss of rent due to temporarily uninhabitable apartments / rent reductions
  • Claims of the tenant that arose in the course of the work (e.g. hotel costs).

Maintenance and repair costs may not be passed on. If the modernization also includes such measures, the costs incurred must be deducted from the total costs. Example: Instead of completely damaged single windows, the landlord installs double windows. He may then only pass on the cost difference between single and double glazing. According to the law, the landlord has to bear the repair costs himself. State subsidies are also to be deducted when calculating the allocation of modernization costs. A modernization rent increase is also not possible if, for example, new soundproof windows are paid for from the neighboring airport.

The landlord has to deduct state subsidies from the modernization costs. Interest rate reductions must also be taken into account, so that the legally permitted annual contribution of 8% may be reduced ( Section 559a Paragraphs 1 and 2 BGB).

Time of increase, the tenant's special right of termination

The higher rent due to modernization must be paid from the beginning of the 3rd month after receipt of the rent increase declaration. If the letter from the landlord arrives in April, for example, the tenant must pay the higher rent from July 1st. This period is extended by 6 months if the landlord has not notified the tenant of the expected rent increase in advance or if the actual rent increase has increased by more than 10% compared to the announcement ( Section 559b (2) BGB).

If the landlord asserts a rent increase, the tenant can extraordinarily terminate the tenancy up to the end of the second month after receipt of the declaration of the landlord with the end of the month after the next. If the tenant cancels, the rent increase does not occur ( Section 561 (1) BGB).

Cap limit

According to § 559 Para. 3a BGB, the monthly rent may not increase by more than 3 euros per square meter of living space within six years, apart from increases to the local comparative rent and increases in operating costs. If the monthly rent is less than 7 euros per square meter of living space before the rent increase, it may not increase by more than 2 euros per square meter of living space. If the rent increase after modernization exceeds the comparable rent level , rent increases according to § 558 BGB must not be increased until the comparable rent exceeds the rent again. Conversely, the rent can be increased up to the local comparative rent if it has not yet reached this after the modernization increase.

Even in the case of modernization measures, the limits of the rental price increase in accordance with Section 5 (2) of the Economic Criminal Law must be observed.

Web links

Individual evidence

  1. ↑ What is a modernization levy necessary for? GdW , April 2013
  2. ↑ Law on the Regulation of Rent Amounts (MHG) of December 18, 1974, Federal Law Gazette I p. 3603
  3. ↑ Tobias Scheidacker: Exploratory paper: Lowering the modernization levy on January 16, 2018
  4. ↑ Law on the restructuring, simplification and reform of tenancy law of June 19, 2001, Federal Law Gazette I p. 1149
  5. ↑ Act on the energetic modernization of rented living space and on the simplified enforcement of eviction titles (Tenancy Law Amendment Act - MietRÄndG) of March 11, 2013, Federal Law Gazette I p. 434
  6. ↑ Change in tenancy law in force ( Memento of the original from June 18, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.haufe.de
  7. ↑ Technical article on the Tenancy Law Amendment Act on Mietrecht-Reform.de
  8. ↑ Section 559 (1) BGB in the version of the law to supplement the regulations on the permissible rent amount at the start of the rental and to adapt the regulations on the modernization of the rental property (Tenancy Law Adjustment Act - MietAnpG) of December 18, 2018, Federal Law Gazette I p. 2648
  9. ↑ Bundestag decides to change tenancy law
  10. ↑ cf. e.g. LG Berlin from January 10, 2018 - 18 S 278/14
  11. ↑ Change in tenancy law came into effect on January 1 , 2019 Haufe Online, January 9, 2019
  12. ↑ BGH, judgment of April 28, 2004 - VIII ZR 185/03 (still on MHG)
  13. ↑ LG Berlin from November 13, 2018 - 63 S 128/18
  14. ↑ Rent increase after modernization of the tenant protection association Frankfurt / Main, as of April 8, 2019