Published by 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?
Introduction
Entry into force and expiry are governed by Article 4 of the Rent Act (here Page 13). After that, it will enter into force on the day after the promulgation in the Berlin Law and Regulations Gazette. § 5 takes effect only nine months after the announcement. Section 5 regulates the rent reduction in existing contracts.
This is about the requirements for the reduction and their calculation, as far as one can say about the current status.
Requirements of the rent reduction
§ 5 Rent Act (here Page 15) determines that excessive rent is prohibited. In this sense, a rent is excessive if it exceeds the upper rent limit specified in sections 6 or 7 (1) after taking into account the residential area by more than 20% and is not approved in accordance with section 8. To take the residential area into account, deduct 0,28 euros for simple residential locations and 0,09 euros for medium-sized residential units from the upper limit. In good residential areas, 0,74 euros are to be added to the rent limit.
The first look is therefore in the table according to § 6.
Which table value should be used?
An old building up to 1918 with collective heating and bathroom is reported with 6,45 euros (net cold) rent limit (table row 1). But what if the Heating rented is? The law itself provides no information about this. A look at the justification (here Page 31) discloses that the MietWoG is based on the Berlin rent index 2013 and that the discounts provided there were transferred here with insufficient equipment. In the rent index, tenant's own equipment is deemed not to be made available by the landlord and is therefore irrelevant.
Applied to the MietWoG, the tenant's own heating is therefore not to be taken into account, which leads to row 2 in the table (old building up to 1918 with collective heating or with a bathroom) and thus to a rent limit of 5,00 euros.
Another question arises with maisonette apartments that are on a later one loft extension based. The year of occupancy on the top floor is older than the year of occupancy of the attic, which may is even a new building and could fall outside the scope according to § 1.
In any case, the case law on the rent index considers the apartment as a unit, ie there can only be one single occupancy, not several. The LG Berlin decided (judgment of 26.09.2013 on Az. 67 S 40/13):
“For an apartment that was not built for the first time by expanding the attic, but has only been expanded and is 117,7 m2 in size, with 42,5 m2 on the attic and approx. 75 m2 on the 4th floor, the part of the building erected before 1918 remains according to para. 6.4 of the Berlin rent index determining the original building age class. The prerequisites for the relevance of the date the apartment is ready for occupancy after the attic has been removed do not exist. ”
The judgment was made on the rent index in 2011 and justified the above “focus theory” as follows (juris Rn. 10):
"The in the explanations for the Berlin rent index 2011 under para. 6.4 (condition) conditions for the ... relevance of the date of the occupancy of the apartment after the attic has not been met. According to Clause 6.4, the occupancy is decisive if the apartment was later built in an existing building, for example by expanding the attic. In contrast, modernized apartments are basically classified in the original building age class; Even in the case of reconstruction, restoration, expansion and expansion of existing buildings, through which living space was created or modified under substantial construction costs in accordance with Section 16 (1) Housing Promotion Act, the original building age class remains decisive. "
The LG Berlin also saw the same when merging two apartments into one larger one (judgment of 23.02.2018 on Az. 63 S 230/17):
“It is just a simple extension or change of living space when two existing apartments are merged. In any case, this does not lead to a classification in a grid field that differs from the building age in the sense of the Berlin rent index in 2017. "
What are the surcharges and discounts?
Section 6 (2) provides a 10% surcharge for an apartment in a one- or two-family house. In the present case, we assume that our old building is a classic tenement house with 20 parties, so there is no surcharge.
Section 6 (3) also provides for an increase of 1 euro / sqm if three of the five modern features mentioned there are available.
How is the cant calculated?
Section 5 gives us the order of calculation: the upper rent limit determined after considering the residential area plus 20%. The table value plus any surcharges pursuant to Section 6 Paragraphs 2 and 3 must therefore first be added to the residential area surcharge or surcharge. We don't know that at the moment because the location is currently unknown. It is not the residential area according to the current Berlin rent index 2019 or that of the 2013 rent index, because then the law could simply have referred to it. Instead, Section 5 (3) authorizes the Senate Department for Urban Development to Residential area allocation Regulation to be enacted and to determine the relevant residential areas for the MietWoG. This regulation has not yet been issued.
This can lead to deviations between the rent index residential area and the rental cover residential area.
Let us assume that our old building with bathroom and tenant's own heating (§ 6 table row 2) will be in a middle residential area. Then 5,00 euros should be deducted from the table value of 0,09 euros, the rent limit is 4,91 euros.
The next step is to calculate the tolerance threshold of 20%. This is 0,98 euros. Accordingly, a rent is inflated that amounts to more than 5,89 euros.
What is the lowering value?
It is not clear. A lowering comes into consideration
- the table value according to § 6 plus the surcharges provided for in § 6 paragraphs 2 and 3 (which would be the permissible value for new leases according to § 4) - in the example above 5,00 Euros,
- the table value according to § 6 plus the surcharges provided for in § 6 paragraphs 2 and 3 plus or minus the residential area according to § 5 paragraph 1 sentences 2 and 3 - in the example above 4,91 EurosOr
- the tabular value according to § 6 plus the surcharges provided for in § 6 paragraphs 2 and 3 plus or minus the residential area and plus the 20% tolerance threshold above which a rent is only considered excessive - in the example above 5,89 Euros.
The latter would be logical. Because if a rent from the tabular values plus 19% is not excessive, so it is permissible and remains, why should a rent from the tabular values plus 21% be reduced to something far below the aforementioned permissible rent?
However, the strange situation then arises that existing rents may be 20% plus residential area higher than new contracts. This is because § 4 does not refer to § 5, ie when a new lease is made, both the residential area and the 20% threshold are disregarded. That would be an unequal treatment of the same, which in turn suggests that the pure tabular value from section 6 (plus the surcharges provided for in section 6 subsections 2 and 3) should be decisive.
Conversely, the question arises as to why a new lease should only be permitted at the tabular value according to § 6 if rents that are up to 20% higher are not yet excessive according to § 5?
Neither the justification of the law from the draft of November 28.11.2019, 23.01.2020 nor that from the amendments of January XNUMX, XNUMX provide any information on this.
Taking modernizations into account
§ 7 MietWoG allows modernization levies of up to 1 euro in total for the catalog measures mentioned there. Let us assume that the euro is taken by the landlord before the entry into force of § 5, i.e. within the 9-month period after the MietWoG comes into force. How is the relevant threshold for cant then calculated?
Section 5 (1) specifies the calculation sequence: a rent is inflated if it exceeds the upper rent limit set in sections 6 or 7 (1) after taking into account the residential area by more than 6 percent. The permissible rent must therefore be calculated in accordance with Section 7, the euro from Section 20 added and the residential area added. Then add XNUMX%.
The result of this calculation is that the modernization euro becomes 1,20 euros, namely by the 20% on the result of sections 6 and 7.
Now we assume that the modernization will after the entry into force of § 5 carried out. In this case there was a reduction to one of the three values that result from § 6 and maybe § 5, in our example above 5,00 EUR, 4,91 EUR or 5,89 EUR. Now comes the modernization euro. Here the value of the modernization remains 1,00 euro, because regardless of whether the 20% in the rent reduction persists or not, it takes place anyway, before the modernization euro is put over.
The same modernization is therefore worth EUR 1,20 if it is allocated before the entry into force of Section 5 of the Rent Act, and EUR 1,00 if this only happens afterwards.
Subsequent production of modern equipment
Finally, I would like to come back to Section 6 (3): if there are three of the five characteristics mentioned there, the rent limit increases by EUR 1,00.
Is this before the entry into force of § 5 the case is the limit in our example
5,00 Euro table row 2
minus 0,09 euros middle location
plus 1,00 euro modern equipment
(Interim result 5,91 euros)
plus 20% of it (= 1,18 euros)
permissible rent 7,09 euros
Again, the 1,00 euro “modern equipment” becomes 1,20 euros because of the 20% tolerance threshold.
How is that after the entry into force of § 5? For example, a new energy certificate can show that the threshold of 120 kWh / qma is now fallen below. Or the landlord modernizes the flooring, which is then "high quality". If two criteria of “modern equipment” already existed, then there are three. After the entry into force of § 5, the rent has already been reduced to the value that resulted without the modern equipment euro. Does the rent automatically increase by EUR 1,00 or even EUR 1,20 if the third criterion is added?
I mean yes. Because after the in Part 11 cited justification the civil law effectiveness of the lease remains unaffected. A 15 euro rent remains a 15 euro rent. It may not be demanded only during the validity of the law insofar as it exceeds the limit. If the limit increases during the term of the law, more of the rent claim that has remained effective under civil law can be requested. A rental declaration by the landlord is not necessary for this. Something else only applies if the rent, which remains effective under civil law, is not or not by 1 euro higher than the limit value of the MietWoG. Then a modernization assessment would be required, which is capped at 7 euro according to § 1.
In the case of a rent reduced in accordance with section 5, section 6 (3) effectively leads to an additional reserve of modernization levy for the criteria there.
I also believe that the 1,00 euro from Section 6 (3) becomes 1,20 EUR because the tolerance threshold of Section 5 also applies if the three modern equipment criteria become effective. Because the bill from when a rent is excessive and therefore inadmissible remains the same.
So that the rental cover is good for something:
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