Housing tenancy

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The Housing Tenancy deals with the portion of the rent law , which governs the leases for housing. It contains special provisions for the protection of tenants in comparison to tenancy law on rooms that are not living spaces (commercial tenancy law, §§ 578 ff. BGB ).

Housing rental law takes into account "the paramount importance of the apartment as the center of human existence" (so-called social rental law ). In the case of tenancy regulations, the legislature must take into account the interests of both the tenant and the landlord in the same way. A one-sided preference or disadvantage is not in line with the constitutional ideas of socially bound private property.

History of Social Tenancy Law

With Art. VI of the law on the dismantling of the forced housing economy and on social tenancy and housing law of June 23, 1960 ( Federal Law Gazette I p. 389 ), the tenancy law of the civil code was also changed. In order to compensate for the free market economy of the housing market, regulations on protection against dismissal and eviction were introduced. Tenancy law has been an integral part of housing policy ever since .

Legal regulation

The right to rent residential space is regulated in Sections 549 ff. Of the German Civil Code .

Living space in this sense is any part of a building that is suitable and intended for permanent private residential use. For example, a hotel room is not included.

Housing rental law contains special provisions on the form of the rental agreement , the amount of the deposit, the operating costs , rent and its increase, the landlord's lien , changing contractual partners, termination and temporary rental agreements . Important subsidiary laws are the Operating Costs Ordinance (BetrKV) and the Heating Costs Ordinance (HeizV). Further restrictions apply to publicly funded living space (WoFG, WoBindG).

These contractual provisions are flanked by the procedural peculiarities of housing rental. Regardless of the amount in dispute, the district court is responsible for disputes in the first instance (Section 23 No. 2a GVG ). A time limit is usually granted in eviction judgments (Section 721 ZPO ). A separate eviction permit is required for each of the (co-) owners of the apartment (Section 750 (1) ZPO ).

Tenancy law reform 2013

As a result of the tenancy law reform in 2013 , the procedural hurdles in eviction actions that refer to third parties in a tenancy of which the landlord did not know before a certain deadline were reduced. In addition, in the event of payment claims due to outstanding rents, the landlord can in future apply in legal proceedings that the tenant provide security for disputed monetary claims that become due after lis pendens (Section 940a ZPO ). If he does not do this, the landlord can proceed with the evacuation by means of an injunction in an accelerated procedure .

In addition, the Berlin evacuation was anchored in German law. In the new § 885a ZPO it is the bailiff at evictions against so-called. Mietnomaden allows to instruct the owner in the property, for example, by simply changing the door locks. Another important new feature are the termination options, which have been expanded. A tenant who is in arrears with the payment of the rental deposit in the amount of twice the monthly rent can be terminated without notice (Sections 543, 569 (2a) sentence 1 BGB).

Finally, a reduction of the duration is excluded from three months if a lack of the rented property due to an energy-efficient renovation occurs (§ 536 para. 1a BGB).

Disputes

Although the law stipulates that the termination of a residential tenancy agreement is permitted no later than the third working day of a calendar month at the end of the month after the next (Section 573c Paragraph 1 Clause 1 BGB) and that an agreement that deviates from this to the detriment of the tenant is ineffective (Section 573c Paragraph. 4 BGB), the Federal Court of Justice considers a mutual exclusion of the possibility of termination for several years in the lease to be effective. In view of the clear wording of the law, this is considered questionable in practice.

New BGH rulings with important changes in tenancy law

In 2012, the Federal Court of Justice fundamentally deviated from its stance on utility bills and emphasizes that tenants who have never asked for an allocation bill can no longer demand a reclaim of the advance payments after moving out - due to the lack of a right of retention.

In January 2015 there were further BGH judgments on the following questions:

  • Smoking: Residents who are unreasonably annoyed by smoking on balconies can request smoke-free times.
  • Fire damage: Landlords can be obliged to have self-inflicted fire damage removed through their building insurance.
  • Shared living and working spaces: In the case of living space that is also used commercially in a mixed tenancy relationship, the right to terminate is decided on a case-by-case basis, but in case of doubt the right to living space applies.
  • House rights: A tenant has the right to act in self-defense and enforce his house rights if the landlord does not comply with the request to leave the living space.
  • Rental deposit: A landlord may only treat a rental deposit as a rental deposit and may not use it to assert any other claims.

In March 2015 there was another fundamental decision by the BGH in which it abandoned its previous rulings on apartment renovation:

  • Form clauses for cosmetic repairs in the lease are ineffective if the living space has been left unrenovated and the tenant has not received adequate compensation for this. If the clause were effective, he would be disadvantaged because he would have to renovate the apartment early when moving out or, if necessary, return it in a better condition than he received it from the landlord himself. Cosmetic repairs to an unrenovated apartment can no longer be transferred to the tenant by general terms and conditions.
  • Generally ineffective are formular (quota) compensation clauses which impose a proportional assumption of costs on the tenant if he moves out before the expiry of the deadlines set in the contract for the cosmetic repair. Regardless of whether the living space has been renovated or handed over unrenovated, the compensation clause represents an unreasonable disadvantage for the tenant because the share of the costs incurred cannot be reliably determined and when the rental agreement is concluded, it is not clear and understandable to him which burden may arise comes to him.

literature

See also

Web links

Individual evidence

  1. BT print. 7/2011 p. 7 on the second law on protection against dismissal for tenancy agreements for living space - second law on protection against dismissal from dismissal of 18 December 1974, Federal Law Gazette I 1974 p. 3603
  2. BVerfG, decision of April 23, 1974 - 1 BvR 6/74 and 2270/73 = BVerfGE 37, 132
  3. ^ Social Tenancy Law Legal Lexicon, accessed April 1, 2016
  4. A second miracle, Der Spiegel 33/1963 of August 14, 1963
  5. Björn Egner: Housing Policy since 1945 bpb , May 5, 2014
  6. Niki Ruge: Tenancy Law - an introduction taking into account cross-references, especially to constitutional law ( memento from February 1, 2014 in the Internet Archive ), accessed on April 1, 2016
  7. Markus Bongardt: Tenancy law reform starts in a few months: Current update and synopsis for lawyers , Tenancy law reform - News, accessed on May 5, 2013.
  8. BGH VIII ZR 81/03
  9. ^ Frank Maciejewski: Waiver of termination: BGH creates "small temporary lease" - exclusion of termination permitted Website of the Berlin tenants' association, accessed on April 1, 2016
  10. BGH VIII ZR 315/11
  11. Expansion of tenant rights: New rulings in favor of tenants ( Memento of the original from January 28, 2015 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. , New BGH judgments and important changes in tenant law  @1@ 2Template: Webachiv / IABot / www.rechtsschutzversicherung.com
  12. BGH, judgments of March 18, 2015 (VIII ZR 185/14; VIII ZR 242/13; VIII ZR 21/13)