BGH: Rental price brake in Hesse void (and thus also in Berlin)

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starting position

The rental price brake works in two stages. In § 556d Civil Code (Federal law) allows the federal legislator to state governments, by regulation (= state law) to put the rent brake in force. This is not just how it works, but this state ordinance

"Must be justified. The reasoning must state the facts on which an area with a tight housing market exists on a case-by-case basis. Furthermore, it must be clear from the grounds of the measures taken by the Provincial Government in the area and period of time determined by the regulation in accordance with sentence 1 to remedy the situation. "

the BGH case VIII ZR 130 / 18

In Hesse, such a regulation was issued on the 27.11.2015. The official reason was missing. It was made public in the year 2017 on the homepage of the Ministry in the form of a file offered for download. On the occasion of a rental price process between the tenant and the landlord, the BGH now had to decide whether the regulation was therefore ineffective altogether - which it confirmed and justified in very clear language. The principle c) of the decision reads as follows:

'It is not sufficient for the purpose of the statement of reasons to comply with ... if the legislature fulfills the obligation inherent in the statement of reasons to make the statement of reasons officially available in a generally accessible manner only after the entry into force of the regulation.'

Guideline e) adds:

"The lack of reasoning leading to invalidity ... has not been retrospectively healed by the subsequent publication of the prescription."

Result: in Hesse so far there was no rental price brake, even if the existence of the local regulation faked something else.

After the reason is clear: in Berlin there is no rent brake!

The Berlin Rent Limitation Ordinance was published in the Berlin Law and Ordinance by the 12.05.2015, without explanation (see here ).

If you look for the reasoning, it can be found alone in an internal information letter from the Senate to the Berlin Chamber of Deputies from the 28.04.2015 (here ). However, this is not to be found in a search on the pages of the House of Representatives. On the Websites of the responsible Senate Department there is still only a reference to the legal text, not to its justification (as pdf here ). Where the interested citizen could still look, "the grounds of regulation in a reasonable way in a generally accessible place " can not be seen, it was officially made known, as far as can be seen, not today.

Thus, the Berlin legal situation does not meet the minimum criteria of the BGH.

Stones instead of bread

The consequence is that all rents that have been concluded so far are permissible. This also applies to all other rents, which will be completed in the future - until the Senate effectively issues a new ordinance.

The authorization for this he has until the end of 2020. Until now, it was unclear whether, after the expiry of the Berlin ordinance, it would be able to issue 2020 another one in June, or whether the federal law would only permit a one-time adoption. However, if we now assume that so far there was no effective rental price brake in Berlin, then the Senate - so seen for the first time - issued one. This applies again for 5 years.

Addendum 20.08.2019

By today's Decision of the BVerfG (Mirror report see here nothing changes. The BVerfG has decided that the federal law in the BGB is constitutional. It went not whether a regulation has been effectively adopted at national level.

By contrast, the BGH was concerned with the state ordinance. If it is void, the rental price brake does not apply regionally.

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