Published by starting position
On May 6, 2021, the Berlin Senate published the Berlin rent index 2021. In the official brochure it says that it is a qualified rent index. However, this time it was only signed by the Senate and the tenants' associations, and the landlord had only "acted in an advisory capacity".
At about the same time, Rudolf Beuermann published an article in the trade journal “Das Grundigentum” (GE 2021 rent index supplement pages 21 and 22) that was really tough. If you follow this, the paper that the Senate describes as the qualified rent index 2021 is neither qualified nor simple, but nothing at all, a legal “nullum”. And Prof. Sebastian from the University of Regensburg publicly takes this point of view (see here). Prof. Sebastian is not just anyone, but the chairman of the gif rent index commission and an expert appointed by the German Bundestag for the parliamentary procedure for the rent index reform and other proposals for reform of the rent law.
This was picked up in the press. The Berliner Zeitung headlines: "Professor sounds the alarm: Berlin allegedly without rent index and rent control", the Berliner Morgenpost (behind a payment barrier) somewhat cautious “Scientist considers Berlin's new rent index to be invalid”. On the Senate Administration website There has recently been an indication that the Rent Limitation Ordinance is void after a judgment of the BVerfG - an assessment that is only plausible if one assumes that there is no rent index.
What is the truth of this legal dispute? And what are the specific effects?
In this article I will discuss the arguments with which this discussion is conducted and what I think about it. In the following articles I will go into what this means for new rentals, for rent increases in the current tenancy and for rental price brakes.
What is a qualified rent index?
A qualified rent index is according to the legal definition in § 558d Civil Code given if a) it is a rent index within the meaning of § 558c Civil Code acts and this b) has been drawn up according to recognized scientific principles and recognized by the municipality or by representatives of the landlords and tenants. It is to be adjusted to the market development every two years. A random sample or the development of the price index determined by the Federal Statistical Office for the standard of living of all private households in Germany can be used as a basis. After four years, the qualified rent index must be drawn up again.
If there is a rent index corresponding to these criteria, there is a legal presumption that the fees specified therein reflect the so-called "local comparative rent".
A legal presumption is an important factor in litigation: Courts can use the presumed fact as the basis for their decision without expert opinion or other verification.
The local comparative rent (oüVm) is, in turn, the point of contact both for new rentals when the rent brake applies and for rent increases during the current tenancy:
- New rentals are allowed in accordance with § 556d para. 1 BGB do not exceed the oüVm by more than 10% (apart from exceptional cases).
- Rent increases are limited twice in terms of amount, namely 1) by 15% every 3 years and 2) by the oüVm, § 558 para. 1 BGB. Beyond this it cannot be increased. So it is wrong if tenants (representatives) claim that the landlord can increase the rent every 3 years. He can only do that if it is below the oüVm, which in turn is significantly below the market rent (which is a separate issue). If the demand is made to limit rent increases further, this means nothing other than that rents that are below average should not rise to an average level, but should remain below average.
Without a qualified rent index, there is no solid basis for calculating these two tenant protection instruments.
Is the Berlin rent index 2021 a qualified rent index?
It would be if it were drawn up according to the legal definition cited above according to recognized scientific principles. To do this, it must either be recreated after 4 years or, if there was a new rent index 2 years ago, it must have been adjusted to the market development by a) taking a sample or b) using the price index.
According to the official brochure, the rent index for 2021 has not been recreated. It is not based on data collection. Instead, it was created by the fact that the rent index 2019 was updated using the price index:
However, the 2019 rent index is not a new one, but an update of the 2017 rent index. In the official rent index brochure 2019, it was stated:
According to the law, an update of an update is not possible, but after 4 years a rent index has to be recreated. In other words: a continuation of an update does not meet the "recognized scientific principles".
Both Mr. Beuermann and Prof. Sebastian conclude from this that the Berlin rent index 2021 is not qualified within the meaning of § 558d BGB.
The Senate counters this with the remark reproduced above in its rent index brochure 2021 that the rent index 2019 was "drawn up on the basis of an empirical, primary statistical representative survey". In other words: at that time the rent index 2019 was called an update. In reality, however, it was a new creation.
That argument is partly correct. Indeed, data was collected for the 2019 rent index. Nevertheless, it is an update of the rent index 2017. In the so-called "Final report", Which represents the methodical approach, is explained in more detail, among other things:
2 page:
6 page:
10 page:
The rent index 2019 is based on a data collection, but is still an update of the rent index 2017 in the sense of the recognized scientific principles of statistics, namely in the variant "collecting a sample" according to § 558d BGB. Logically, the Senate and tenant and landlord associations have described the 2019 rent index as an update. To claim that this is actually incorrect, I would at least call it sporty. Certainly we will only know about this after a judicial clarification, but there is a lot to suggest that the Senate will have to adhere to its own assessment from 2019.
Is the Berlin rent index 2021 even an (at least simple) rent index?
A (simple) rent index is in accordance with this § 558c Civil Code an overview of the local comparative rent, provided that the overview has been created or approved jointly by the municipality or representatives of the landlords and tenants. Such rent indexes should also be adjusted to market developments every two years. What is missing is the presumption of conformity: a simple rent index is at best an indication that the values shown in it exist, but it does not prove anything. If one side relies on a simple rent index in court, the other side can simply deny that its content is correct. Then the court has to take evidence, for example through expert reports.
However, a simple rent index or even a rent index at all is only available if it contains an “overview of the local comparative rent”. § 558 para. 2 BGB tells us what the oüVm is exactly: It is formed from the usual fees charged in the municipality or a comparable municipality for living space of a comparable type, size, equipment, condition and location, including the energetic equipment and condition in the past six years have been agreed or, apart from increases according to § 560, have been changed.
The 6-year period has been relevant since January 01.01.2021st, 31.12.2020. There was a 4-year period until December 2019, 4. Therefore, the rent index 2021 was created on a 2019-year basis. Since the rent index 4 merely further indexes the rent index XNUMX, it is also based on a XNUMX-year basis.
That in turn is no longer permissible. The transitional provision (here) only allows such a thing for rent indexes that were published before 01.01.2021. The rent index 2021 was only published on May 06.05.2021th, XNUMX.
From this, Mr. Beuermann and Prof. Sebastian deduce that the rent index 2021 is not a simple rent index, but not a rent index at all. Because it does not contain an overview of the oüVm in the sense of the applicable, but in the sense of an outdated, no longer applicable legal definition, which according to the transitional provision is expressly no longer applicable.
I cannot think of any counter-argument to this.
Can at least the 2019 rent index continue to be used?
It is not entirely out of the question to continue to use a rent index after it has expired, at least for rent increases. A 20-year-old rent index is no longer applicable (BGH VIII ZR 340 / 18). However, if the landlord refers to the previous reference shortly after the publication of a new rent index, his request for an increase is formally correct (BGH VIII ZR 337 / 10). How far this can be extended in time has not been finally decided, but perhaps that could be enough for a transition phase in the current unclear Berlin situation?
Probably not. Because this is also opposed by the transitional provision for the changed observation periods (here): a rent index that was collected on a 4-year basis may continue to be used for a maximum of 2 years after its publication. The Berlin rent index 2019 was published on May 12.05.2019, 13.05.2021. It is therefore no longer applicable from today, May 2019th, XNUMX at the latest. The transitional provision does not limit the statutory non-application requirement to qualified rent index, but speaks generally of the "rent index", i.e. also the simple one. The following applies: the XNUMX cannot be used.
Conclusion
In Berlin there is no longer a rent index as of today, May 13.05.2021th, 2021. The rent index published as 2021 corresponds neither to the legal requirements for qualified nor for simple rent index. Where the BGB speaks of “rent index”, something is meant that the “rent index 2019” does not meet. The XNUMX rent index expired yesterday by virtue of the statutory transitional provision and can therefore not be used as an alternative.
I will discuss what this means for tenancy law practice in the following articles over the next few days.
first follow-up contribution: Rent increase without rent index
second follow-up contribution: Re-letting without a rental price brake
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