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?
Addressee of the threat of fines
Section 11 (1) MietWoG begins with the words
"Anyone who acts willfully or negligently acts in violation of the law ..."
The word "who" is not limited to landlords, but addresses every person who fulfills one of the following catalog criteria.
with information and cooperation obligations
Numbers 1 - 3 and 5 of § 11 deal with the violation of an obligation (for information, participation or notification of facts). Such a duty can only violate those who have it. Therefore, the administrator is only considered as the addressee of the threat of fines if he himself has such a duty.
This is the case in No. 1, which is based on a violation of a Obligation to provide information according to § 2 Paragraph 3 sentence 3 MietWoG. Regarding this (here Page 12) the law calls that Administrator expressly as a committed party, It is consequently consistent if the threat of fines in Section 11 (1) No. 1 of the Renting Act is also addressed to the administrator and the justification for the law takes this up (here Page 37):
"According to number 1, anyone who does not, does not properly or not fully fulfill his obligation to cooperate in accordance with Section 2 ... According to this regulation, tenants and landlords as well as the persons acting for them (e.g. property managers or other agents) must provide the relevant district office with all required information and provide documents upon request. The administrative offense regulation thus serves to ensure the proper monitoring of the provisions of the law by the district offices and ensures that they can take the necessary measures. "
Numbers 2, 3 and 5 of § 11 concern obligations that were only imposed on the landlords, not also on the administrators. For this reason, the administrator cannot personally implement any fines.
No. 4 of § 11 improperly demands or accepts rent that is not permitted under the MietWoG. Nowhere in the law is there a separate obligation regulation. The amounts that exceed the limits declared as permissible are simply prohibited and are therefore partially null and void in accordance with § 134 BGB.
The obligation not to demand or receive such amounts follows directly from the Owi facts themselves. Since this is not aimed solely at the landlord, but at everyone, an administrator or the landlord's bank can fulfill it.
However, a manager of third-party assets is not in your own interest, but for the respective client. For example, when it comes to the question of who accepted an impermissible rent, one could take the position that it was the landlord who acted through the administrator, but not the administrator himself. The reasoning for the law could be understood as it speaks to the Claiming or receiving money only from landlords (here Page 37 below):
“Pursuant to number 4, landlords act improperly, who demand a higher rent than the permissible according to §§ 8 to 3 without the required authorization according to § 7 ... The administrative offense serves to secure the rent increase regulations of this law. "
It can be assumed that it is not a good basis for further cooperation if the manager refers to the owner because of the fines, especially when it comes to the receipt of money that came into a rental account managed by the manager. Apart from this internal problem, I do not consider the administrator to be protected with this justification. A contract killer cannot take the position that it was the client who acted through him, therefore he, the killer, is not responsible for the legal consequences. If the law constitutes an independent duty to do or not to do something, the addressee of the regulation is everyone who fills out the facts.
In my opinion, the administrator thus falls under the wording and thus the scope of the threat of fines when claiming or receiving money.
Rental account structure as a delimitation criterion
If the rental bank accounts are in the name of the owner, the money goes to them. Acceptance by the administrator can be denied here with good arguments. On the other hand, if the account is in the name of the administrator, the administrator accepts the money. If such structures still exist, it is advisable to change them now at the latest.
When tenants come into the administration with cash and Rückstände want to pay, the administrator accepts it first. The owner has a claim against the administrator for forwarding. Nevertheless, the administrator has received the fine, which is subject to a fine. If, according to the MietWoG, inadmissible rental amounts are included in the payment, the person in charge of the administrative fine is fulfilled. I cannot advise you to accept this in the future.
Bail is not rent. If the tenant in the administration pays a deposit in cash, which is calculated based on a rent that exceeds the permissible values according to the MietWoG, this is possible. too much under civil law, but not fined. Also operating cost are not rent in the sense of MietWoG, see § 3 paragraph 5.
The conclusion of a lease on behalf of the owner should be unproblematic. I have discussed with various colleagues and we are generally of the opinion that it is not a "requirement" to agree on a rent that is above the rent cover. Because this agreement is partially null and void according to the logic of the law according to § 134 BGB and therefore does not trigger a claim. “Demanding” is therefore the request to pay something, but not the conclusion of the contract itself.
A contract, whatever the amount, does not fall under any of the circumstances of the fine and can therefore still be carried out by the administrator himself.
So that the rental cover is good for something:
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