Administrator practice rental cover: Part 3 - Not so hot because it's unconstitutional anyway?

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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?

Problem despite violation of the constitution

Even if the law is null and void from the outset, it will be enforced by the administration until the BVerfG has established it. A lot of damage can occur during this phase, because of the structure laid down in the law to be able to defend yourself (not promptly).

According to § 10 para. 2 MietWoG (here Page 20) have legal remedies against measures and decisions under the MietWoG no suspensive effect, The Senate administration responsible for housing decides on the objection to a decision made on the basis of the MietWoG administrative and related measures of administrative enforcement.

The original 3-month period has been canceled. If the Senate administration does not make a decision within three months, you can still file one before the administrative court failure to act rise. The complaint is to order the Senate administration to decide on your objection. The administrative court will, depending on the number of lawsuits received, at some point within the next one to five years decide. A positive verdict is that SenVerw must modestly object to your objection. Then she will do that. If you reject it with your decision, you can do so before the VerwG Main complaint raise and request cancellation of the administrative act. Here you will find more one to five years received a judgment.

In case of doubt, two administrative judicial proceedings are necessary, for example to remove an administrative act that was issued on the basis of the MietWoG.

However, the appeal against this has no suspensive effect, section 10 (2) MietWoG. Literally it says:

"Remedies against measures and decisions under this law have no suspensive effect."

Immediate enforcement of fines?

In a first version of this article, I took the view that notices of fines are therefore enforceable as soon as they are issued. However, this should not be the case. To Section 89 OWiG decisions on fines are enforceable if they have become final. Enforcement cannot take place as long as there is no legal force because you are defending yourself with an objection and an action to contest fines.

The threat is still immense. Because every single violation is subject to a fine of up to 500.000 euros, such as the receipt of rents that are inadmissible under the MietWoG in x cases in March and then again in y cases in April and so on. This causes x fine notices in March and y in April. Defending yourself against it results in legal fees, and because there are many notices and considerable amounts involved, it is not exactly cheap. Anyone who chooses this strategy is also placing increasingly larger parts of their assets on the card so that the BVerfG actually cancels the MietWoG, otherwise the fines could ultimately remain in place. Everything speaks for an unconstitutionality of the law; However, you shouldn't bet on legal prognoses for decisions of our highest courts, because every now and then you will be surprised.

It is important not to miss any (fine) notice. If the appeal period is missed, the decision becomes final. Whether or not the MietWoG will be canceled later would then no longer be relevant for this decision, it would remain in place.

At the same time, it could be that the financing bank becomes aware of the situation and ascertains that the loan is underinsured under the rental cap values. The bank is then legally obliged to request additional collateralization of the loan. If the security is not provided, the bank will probably be forced to terminate the loan.

Application for suspension of immediate execution

In both the opposition and the lawsuit proceedings, the landlord can request that immediate enforcement be suspended if otherwise damage that cannot be repaired would occur to him. Such requests must be carefully justified, basic norm is Section 80 VwGO.

Hardship applications and staff cover

As far as can be heard, 17,5 positions are currently available in Berlin's district offices for work in connection with the MietWoG. That is one clerk for every 100.000 rental apartments. In contrast, there is still no personnel cover for the processing of hardship applications according to § 8 MietWoG at the IBB.

The extent of the problem is ultimately limited solely by the capacity of the district offices to fine. We'll see how long it takes to have enough staff there.

Notices of fines may continue to be issued after 5 years.

Article 4 paragraph 2 sentence 2 of the Act (here Page 13) stipulates that the regulations on fines continue to apply even after the law has expired, insofar as they relate to administrative offenses during the period of validity of the law. The authorities therefore have time up to the limitation period to process the rental transactions for the years 2020-2024 and to issue corresponding notices of fines after the fact. Your tax returns show what rental income you had; if not, you can request the documents (if you fail to do so: fine).

How realistic is it all?

With a view to the immensely high threat of 500.000 euros per individual case, each landlord (and for him each administrator) has to consider whether he would like to offer himself an example or whether one takes the threat of administrative offenses as an opportunity until the judicial clarification of the constitutional questions to act as if it were all effective. That means, as explained in my previous two contributions, the stop of all direct debits and the non-acceptance of all rental amounts that are above the values ​​from June 18.06.2019, XNUMX or that have been agreed to be ineffective, ie violate the rent brake.

To what extent this only affects landlords or administrators, I will discuss in the next post.

So that the rental cover is good for something:

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