Published by Legal guarantee and entitlement to justice
Art. 19 para. 4 of the Basic Law is a central norm for our rule of law. If someone's rights are violated by public authority, the legal process is open to him. If no other jurisdiction is established, the ordinary legal process is given, i.e. civil jurisdiction.
This so-called legal process guarantee corresponds to the so-called right to justice, which derives from Art. 2 GG in conjunction with. follows the rule of law. In plain language: as long as Germany claims to be a constitutional state, it must be possible to appeal to the courts and have matters checked there. The question of whether or not access to justice is possible decides whether we live in a free society.
As a child of the GDR, I am very sensitive on this point.
§ 11 Section 4 MietWoG Bln
now declares it unlawful if a landlord "demands" a rent higher than that permitted under this law. Since the reasons for the law do not explain exactly what the word "demand" means, there are various interpretations, depending on the political inclination of the viewer.
In the district court's jurisprudence in Berlin as well as that of the district court, it seems to be predominantly general view that a rent increase request does not represent a "demand" in this sense. Because it is not required to pay a specific rental amount, but approval of a contract change.
BZA Pankow sees it differently
With regard to BZA Pankow, we now receive the news that the rule of law is not so important there. A landlord who asked for approval for EUR 14,95 in accordance with Section 558 of the German Civil Code (BGB) was forbidden from there under threat of a penalty payment of EUR 1.000 to maintain this. A week later, under the threat of a further penalty payment of 2.500 euros, he was prohibited from suing another unit. You will find the two letters here .
As a lawyer, I was frankly amazed that someone in the administration could come up with the idea and then seriously represent that filing a civil suit could be a penalty payment. With a penalty payment it is enforced that an undesired behavior is omitted or a desired behavior is brought about. So here it is desired that a citizen does not take the legal remedy provided for in the specific case by law, and he should be forced to refrain from doing so.
I admit that from an administrative point of view, this may be a practical approach, because if this works out here, we could also do the same with all the other unpopular public concerns: whoever takes administrative legal channels because they do not receive a building permit: prohibition order and penalty payment. If you do not agree with your tax assessment and lodge an objection: prohibition order and penalty payment. Anyone who is suspected of stealing from someone does not need a lawyer; but he instructs one: prohibition order and penalty payment. And citizens who complain to one another are not acceptable anyway, including prohibition orders and penalties.
In this way it would be very easy to regulate that the citizens of this country would behave like subjects in the future and no longer piss off the authorities. I personally don't want to live in such a society.
Addendum 29.09.2020/XNUMX/XNUMX: the "New Germany" reports here that the threats of fines by the BZA Pankow were successful in some cases and that the landlords withdrew their requests for increases, in other cases not.
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