Published by Another 5 years rent brake in Berlin
The rent brake came into effect in Berlin on June 01.06.2015, 5 and was limited to a term of 31.05.2020 years. The corresponding regulation expired accordingly on May 14, 2020, ie last Sunday. However, on February 5, XNUMX, the German Bundestag decided that it could be enacted for a further XNUMX years. You can find the "Law on the Extension and Improvement of the Regulations on the Permissible Rent Amount at the Start of Rent" here , the parliamentary process here . Berlin made use of this extension option in good time. In the Law and Ordinance Gazette of May 28.05.2020, XNUMX, three days before the expiry of the previous ordinance, the new one appeared (see here ). Unlike in the past, it was mentioned in the legal text that it is justified and where the justification can be found, namely in the Official Journal. The official justification appeared there on May 29.05.2020, XNUMX (see here ).Is this constitutional?
There were already constitutional complaints against the first rent brake. On July 18.07.2019, 1 the BVerfG decided (Az. 1 BvL 18/1, 4 BvL 18/1, 1595 BvR 18/XNUMX). The lawsuits were unsuccessful. However, the BVerfG gave important information on the limits of such interference in the fundamental rights of the owners. Among other things, it stated:"However, a legal regulation to regulate the rent amount must maintain the limit of reasonableness and must not put excessive strain on the owners concerned. When designing mandatory tenancy regulations the legislator must either the concerns of the tenant as well of the landlord in the same way the berücksichtig. This does not mean, of course, that they should have the same weight at all times and in every context. A one-sided preference or disadvantage is not in line with the constitutional ideas of a socially bound private property…. The limits set by Art. 14 Para. 1 GG would be exceeded in any case if the rent level regulation led to long-term losses for the landlord or to the substance of the leased property. ...
If tense housing markets can only be effectively countered in the long term only by ensuring adequate living space, it is appropriate to design the short-term rent level regulation in such a way that that the rental of living space will not become economically unattractive in the long term. With regard to the legislative goals of rent level regulation, it is also appropriate that existing rents are not lowered, but rather that inadequate rent increases are prevented when the property is re-let. ...
The local comparison rent loses this market reference angesichts the 10% allowable surcharge, the temporal and spatial restrictions as well as the exemptions from the rent level regulation also not for the period of validity of the rent level regulation. "
If you read the decision carefully, you will notice the barriers to which the Federal Constitutional Court refers to the cited and many other passages. Legal regulations of the housing market must be appropriate, proportionate and reasonable. You must not make renting living space economically unattractive in the long term. The rent brake is only proportionate because it is limited in time. One can certainly doubt whether the current extension of 5 years still corresponds to this. Because the market reference is lost when the rent brake becomes self-referential because it caps new letting for so long that its point of contact - the local comparative rent - no longer has any market reference. If market prices can no longer develop for more than 5 years, but only regulated prices, the market reference of the rent index is lost. There are already no more unregulated market rents in Berlin because the rent brake had already been in place for 5 years. The rent index 2019 is based on the rents of the 4 years before. All of these were already regulated. But if there is no market for a long time, the regulated price level can no longer be related to the market. The only exceptions to this are apartments that are not subject to the rental price brake, ie built from 10/2014. In Berlin, these are at a completely different level than the regulated apartments, which shows that the market reference of the latter has meanwhile been completely lost. For this and a few other reasons, I think that constitutional complaints against the extension of the rent brake should have a much better chance of success than those for the first 5 years.retroactive repayment of overpaid rents
The CDU has now given in to a long-standing demand from the left-wing political spectrum: the tenant's retroactive claim to repayment of rents insofar as they violate the rent brake. Section 556g (2) BGB was changed and received the following sentence:"If the tenant notifies the violation more than 30 months after the start of the tenancy or if the tenancy had already ended upon receipt of the complaint, he can only claim back the rent due after receipt of the complaint."
30 months is two and a half years. The regulation came into force on April 01.04.2020, XNUMX.
