Elimination of the business basis
The intended content of the Berlin Mietendeckelgesetzes is a serious disadvantage of the legal position of the Berlin landlords. The possibility to increase the rent according to BGB will be suspended, as well as the modernization costs after modernization. Upper limits are introduced for rents, which in many cases are far below the current existing rents. The landlords are motivated by fines of up to 500.000 Euro per case not to ignore the rules.
In the event of a serious deterioration of a contracting party as a result of legal changes during an ongoing contract, this gives rise to a right of termination without notice, § 313 para. 3 sentence 2 BGB. The unintentional side effect of the rental cover is therefore that with its entry into force all rental agreements in Berlin, which already existed on 18.06.2019 and fall within the scope of the law, can be terminated without notice. In my opinion, this is independent of the current income of the tenant, especially since this can change at any time, and regardless of its land consumption. The Berlin Senate is planning to enact the law on the 11.01.2020, and a wave of layoffs is expected in Berlin for this and the following days.
I have this in an article in the trade press, which I may set here with the permission of the publisher as pdf:
Real estate 2019 Page 1158: Elimination of the business basis by rented cover
Nullity of the law reaffirmed
Whether you can cancel without notice from the 11.01.2020, depends on whether there will be a Mietendeckelgesetz. That's probably not the case. Because even if it survives the legislative process and is proclaimed, it would be void. The former President of the Federal Constitutional Court, Prof. dr. Hans-Jürgen paper in one Expert opinion, which reads like a verdict of his former court, again and convincingly confirmed. His conclusion is:
According to the Basic Law, the Länder, and thus also the provincial legislator of Berlin, have no legal competence to introduce a so-called rental cover.
The state of Berlin could not even reduce the cap on rent increases on its own initiative from 15% to 14%. Such far-reaching interventions as currently planned are simply not possible.
The Mietenteckelgesetz must therefore not be applied by the Berlin courts, even if it should be issued.
Process strategy from the landlord
That the Mietendeckel is void, is in the context of a termination due to loss of business basis an argument in favor of the tenant.
The right strategy from the owner's point of view is therefore to consider which tenants are to be terminated on the day the entry into force of the Mietendeckelgesetzes, because they would not have rented under the new legal requirements to them, and then pronounce these terminations. Subsequently, it is up to the tenant lawyers to convince the court of the eviction process that the business basis has not been removed because the rent cover law is void.
Invest at the apartment level
For the construction of assets and passive income from real estate, especially one or more condominiums, I have written an ebook, you can find the link to Amazon here , If you prefer to keep it printed in your hand, you will find it here .
Who under the new rules no longer rent, but wants to use, can cancel due to personal needs.
The advantage is that the effectiveness of such a termination does not depend on the effectiveness of the Mietendeckelgesetzes. If you want to read about the topic of self-employment termination, you will find related blog articles under the following links. Of course you can also just commission me, then I will do everything for you as your lawyer.
- Personal use termination for others
- Documents for personal use termination
- Protection against dismissal for old tenants?
- Own requirements: elimination of the reason for termination before expiry of the deadline
- BGH: no landlord change in internal sale
- No self-service termination via 80 for second home
- Script for personal use
- Own use also for second home
- Tenant protection at conversions
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