Administrator practice rental cover: Part 13 - What is a "demand" with a fine?

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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?

Fines for improper “demands”

According to § 11 Para. 1 No. 4 MietWoG (here Page 21) acts improperly if you request a higher than the permissible rent without permission. The administrative offense is threatened with a fine of up to EUR 500.000.

In Part 5 of this series of articles I had already pointed out that the single Conclusion of a lease In my opinion, no "demanding" and therefore harmless is. Because according to the logic of the law, the impermissibly high part of the agreement is partially null and void, so it does not justify a claim. It is not forbidden to conclude void contracts, they just have no legal effect.

Rather, “demanding” rent in the sense of the penalty does mean that a payment is specifically required, for example through a reminder or a payment claim.

Demand by warning

Accordingly, you are fined if you send the tenant a reminder and request payment of the rent arrears.

There is no penalty if you only inform the tenant of the amount of the arrears. You can also inform that if there is a continuous accumulation of arrears in the amount of more than one month's rent, you can cancel without notice. Neither of these two pieces of information is aimed directly at the tenant paying you anything, so no "asking for rent".

Claim through payment suit

One of the strongest, strongest ways to request payment is to file a lawsuit. In my understanding of the MietWoG, this is subject to a fine from the time it comes into force.

There has never been anything like this in the history of the Federal Republic: that it is assessed as an administrative offense and subject to a fine, that the judiciary is asked for jurisdiction and a civil action is brought for this purpose. Forbidding the citizen's possibilities under the rule of law is the direct route to an unfree society. As a child of the GDR, who grew up on the side of church opposition to the system at the time, I am extremely sensitive to attempts by the state to attack our liberal social order. Punishable to the citizen, sorry: fine, forbidding to claim the rule of law, reveals an attitude to our social order that we cannot tolerate if we want to remain free and self-determined.

One might think that it is not meant that a payment claim is not a "claim". The result would be that one should not admonish out of court, but must sue immediately. This is not necessarily an improvement for the tenants.

Require enforcement

The same issue arises when there is a payment title. Let us assume that the lease provides a gradual step to July 2019 and the tenant paid nothing in the months of October to December 2019. Notice of payment and enforcement are available, the latter is legally binding. It would then be illegal and subject to fines to enforce the staggered portion of the backlog, because this may no longer be required in accordance with Section 3 of the Rent Act.

A title issued under the rule of law is canceled by the threat of a fine for its use. In my eyes, that is also extremely worrying.

Demand through rent increase?

In Part 11 of this series of articles I had shown that after the justification of the law, the civil law level remains unaffected and continues to be based on the BGB. This means that consent to the rent increase according to § 558 BGB can also be requested in the future. Would this request for consent be a “request for inadmissible rent”?

Probably no. Because no rent is required, but a contract declaration. If you wanted to see it differently, the MietWoG would, contrary to its legal justification, encompass the BGB, which it cannot, since the latter is federal law and the MietWoG is only state law.

What is left?

If an attempt is made to interpret the wording “request” in accordance with the rule of law, neither the payment claim nor the enforcement, neither the conclusion of the lease agreement nor the request for consent pursuant to Section 558 of the German Civil Code can be valid.

What is left is that one must not admonish. A reminder protects the debtor by alerting them to a problem and giving them an opportunity to remedy them before the more serious consequences arise.

So that the rental cover is good for something:

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