According to Section 3 Paragraph 1 of the MietWoG Berlin, it is forbidden from February 23.02.2020, 18.06.2019 to accept a rent that is higher than the effective rent on June XNUMX, XNUMX.
This initially applies to all rent changes afterwards, whether it be seasons, index steps, increases in the rent index or modernization levies.
Then it affects all rental amounts that are not effectively agreed, in other words: violate the rental brake. Because after Section 556g (1) sentence 1 BGB such agreements are ineffective, even without a complaint by the tenant. In these cases, the maximum permitted rent after the rental price brake has been effectively agreed.
It is currently unclear whether the rental price brake applies in Berlin. The AG Charlottenburg (judgment of 19.12.2019, Az. 230 C 79/19, published in GE 2020, 202) thinks: no, it does not apply in Berlin.
On the other hand, you still have the right to payment for all these amounts according to the German Civil Code and rental agreement. Pages 4 and 5 of the justification - see Part 11 of my row on the rental cover - Explicitly declare that there is no interference in the BGB and rental contracts. Even if you see it differently, the MietWoG is likely to be unconstitutional and void, even then it will not trigger a rent reduction.
The tenant is therefore obliged to pay and you have to observe a ban on accepting payments. As a result, residues are mandatory. This is as uncomfortable for your tenants as it is for you. What to do?
Formulation for the trust account solution model
If the difference in question is not essential for ongoing liquidity, an escrow solution can be considered. Below is a proposal using the example of a rent increase before the cut-off date effective September 01.09.2019, XNUMX:
on February 23.02.2020, 500.000, the Berliner MietWoG comes into force. After that, it is illegal and threatened with a fine of up to EUR 18.06.2019 if I accept a rent from you that is higher than that of June 01.09.2019, XNUMX, i.e. the rent increase that came into effect on September XNUMX, XNUMX. If you transfer this to me, I will have to transfer it back to you.
At the same time, my contractual claim against you for payment of this increase according to pages 4 and 5 of the justification of the law remains unaffected, which means that you still owe me this increase. If you do not pay the rent increase, you will be in default of payment. Since I will have to transfer the money temporarily in the future, there is an inevitable monthly rent backlog. If you are in arrears with more than one month's rent, there is a reason for termination of the rental agreement without notice.
To solve this dilemma, I suggest that I set up an escrow account for you, to which I pass on the monthly rent increase difference and keep it for you. If the MietWoG has been canceled or expired by the BVerfG, this money can then be used to offset your rent debts. As long as you use the trust agreement, I would not terminate with the differences from the MietWoG Berlin due to late payment.
I ask for confirmation by 26.02.2020/XNUMX/XNUMX so that the trust account can be opened in time for the March rental. "
So that the rental cover is good for something:
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