Seminar on the rental cover on February 17.02.2020, XNUMX
Part 1 - Direct Debits
Part 2 - “Accepting” rent payments
Part 3 - Everything not so hot because it's unconstitutional anyway?
Part 4 - Is only the landlord or the administrator liable?
Part 5 - Conclusion of new leases
Part 6 - Obligation to notify of key date rent immediately after entry into force without a period
Part 7 - Obligation to provide information about the circumstances of the calculation immediately after entry into force without a period
Part 8 - General information and submission obligation to the authorities immediately after entry into force without a period
Part 9 - Obligation to provide information about the circumstances of the calculation within 2 months of the entry into force
Part 10 - Notification of modernization prior to entry into force within 3 months after entry into force
Part 11 - What Happens After the Law Expires?
Part 12 - Rents cut in 9 months
Part 13 - What is a "Request" with fines?
Recommendation: Do not accept rental amounts above the cover values
According to § 11 para. 1 number 4 MietWoG (here Page 20 below / 21 above), it is illegal and threatened with a fine to "accept" a rent that is higher than permitted under the MietWoG. According to section 3 (1) sentence 1 MietWoG (see above, page 13) one is prohibited from the entry into force of the law Rent above the effective agreed rental date from 18.06.2019 for existing contracts.
It means that Rent increases with effect after June 18.06.2019, XNUMX, whether from a rent index increase, modernization, season or index adjustment, from the entry into force as inadmissible apply and it one penalty offense fulfilled when you accept their payment.
Is ineffective after Section 556g (1) sentence 1 BGB rental fee, the above of the regulations for Rental price brake is, for example when the contract is concluded after June 01.06.2015, 10, which exceeds XNUMX% above the standard local rent without an exception. Literally:
"An agreement that deviates from the provisions of this sub-chapter to the detriment of the tenant is invalid."
The state of Berlin has created a penalty for violations of the rental price brake, and this immediately after the rental law comes into force.
If you follow my recommendation from yesterday and finish your direct debit, the tenants will (have to) transfer their rent themselves. It is to be expected that many will not pay a cap rent, but what was previously valid and agreed. To the extent that this exceeds the permissible lid rent, you may not accept this. The question arises of how you want to prevent this if the tenant makes a transfer to the rental account and the bank posts the payment to you. This means that the “acceptance” is complete and the fact that the fine has been imposed has been achieved. To prevent this, you basically have to close the rental bank accounts so that no money can be deposited there that you are not allowed to accept.
If you don't want to be so strict, at least you will be asked to do so transfer the impermissible amounts immediately to the respective tenant, therefore actively reject the receipt. Which time window is to be regarded as "immediately" is again a matter of opinion: perhaps precisely to the day, perhaps within three banking days, perhaps a little longer. Owners who receive paper statements from their bank once a month will probably be late by the time they read that money has been received that should not have been received.
From the entry into force, but also retrospectively
According to press reports, the MietWoG was decided on January 30.01.2020, XNUMX. It comes into force the day after its publication in the Berlin Law and Regulations Gazette. If the rent in question is paid before, you can still accept it, otherwise not anymore.
It does not matter which month the payment is made. If the tenant pays a backlog for October and November 2019 and contains a part that exceeds the permitted rent after the rental price brake, you may not accept this payment (difference) because it is not permitted under the MietWoG. If the tenant pays the February 2020 rent only on February 15.02.2020, 02.02.2020 and the law came into force beforehand (which is still unclear at the time of this contribution), the same applies. However, if the tenant pays his February rent on XNUMX and the law only comes into force after that, you can still keep the February rent in full.
Rent increases are not invalid.
We all assume that the law is unconstitutional. This means that the rent increases, which took effect after June 18.06.2019, XNUMX, are not remedied substantively. Your civil law entitlement will still exist in the future. You may no longer “accept” the payment if you do not want to risk an (immediately enforceable) fine.
In this respect, a necessarily arises rent arrears at the tenant in the amount of the rent increase difference after June 18.06.2019, XNUMX, which you must not, of course, remind, because you must not "claim" the shortfall (which is also subject to a fine).
If the accumulated shortfalls create a backlog of more than 1 month's rent over time, you may be able to cancel. Because the termination is neither a "request" nor a "receipt" of money. If the tenant gives you one Grace period payment you may not “accept” them. The rent arrears at the tenant must remain open. With the restriction "maybe" I mean that a termination presupposes that the tenant in delay device, which is not the case if the landlord refuses to accept the payment. Now it gets interesting: You do not voluntarily refuse to accept the payment, but you refuse to fulfill the penalty by “accepting” it. You can openly protest against this and declare that you insist that the rent arrears will be serviced, but you must not accept the payment. In the near future, the question will arise as to whether / how you can reject the tenant's payment without declaring a refusal of the service with the result that the delay in payment no longer applies. I cannot offer a solution for this at the moment.
However, if the tenant transfers only the capped amount in the following month - knowing and with the experience from your handling for the previous month - so that you do not have to make the remittance of the impermissible difference, he will in any case be in arrears with this difference. The tenant is therefore obliged to transfer an inadmissibly high rent to you every month if he wants to avoid that you can terminate it, and you are forced to transfer the inadmissibly high difference back to him every month if you want to avoid to implement a penalty.
When communicating with the tenant, it is important that you avoid making a contract change that leads to a reduction. So you must not inform the tenant that his rent is now "reduced" or that you "waive" the difference or similar. Neither in the express nor in the tacit communication or your handling you may behave in a way that signals the tenant that his rent should now be contractually reduced. Otherwise you will lose the opportunity to request the missing amounts as soon as the law has been repealed by the BVerfG.
Notification to the tenant
Regarding the transfer of inadmissible rent shares, I recommend a letter to the tenant concerned with the following content:
according to § 11 Para. 1 Number 4 MietWoG in conjunction with From now on, § 3 Paragraph 1 Sentence 1 MietWoG I can only accept your payment in the amount that was agreed or owed on June 18.06.2019, 500.000. If you transfer more than this to me, I have to transfer the excess back to avoid committing an administrative offense that could result in a fine of up to € XNUMX.
I hereby expressly declare that I will not waive the difference and that in future you will fall behind in this monthly rent increase. I would also like to point out that if you fail to make the difference, you will be in default if you do not make the difference.
A reservation should be made regarding the intended use of the remittance, such as “rent cover difference under reservation”. If you also want to address the problem of default in the purpose of use, you can add this and write, for example, "Rent cover difference under reservation without refusing acceptance".
Furthermore, it is advisable to communicate with the tenants about the accumulated arrears. I do not mean that you are reminding them, because that is a fine for fines. But what you can do is write the tenants the following and then proceed accordingly:
I would like to point out that there is currently a backlog of ... euros in your rental account. I am legally prohibited from admonishing him. However, I may ask you to confirm and expressly acknowledge to me through this declaration that you currently owe me this amount. For this I set a deadline by ... After a fruitless expiry of the deadline, I will file a suit with the district court for the arrears.
Of course, you can also omit the last sentence. With such a wording, you are not asking for an impermissible rent, but an explanation. In my understanding of the law, this should not be a violation. However, I do not accept any liability for this rating.
A lawsuit is also a "request", so you have to change the applications somewhat and, if necessary, choose a combination of conditional payment and auxiliary declaratory judgment. I highlight that in a separate post.
So that the rental cover is good for something:
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