Anyone who has been following my posts here in the blog for some time knows that serious legal concerns were expressed in the legal literature immediately after the publication of the Berlin Rent Index 2021. I set out the details in three posts from May 13-15, 2021.
The problem harbors risks and opportunities - the latter, for example, in the case of new rentals, which can be carried out in a legally secure manner at realistic levels using rental reports free from the restrictions of the rent index statistics (see here ). On the other hand, there are risks with rent increases in the current tenancy. Because such a decision must first be justified before it can be processed if necessary (see here ). Not every landlord (especially small ones) has the data from comparable apartments and the costs of a rental appraisal (see here ) are not always in an economically sensible relationship to the increase that can be achieved within the cap of 15%.
Haus & Grund has therefore recommended that rent increases should first be justified with this, despite the formal concerns about the Berlin rent index 2021. Because experience has shown that 90% of the addressees agree and then the increase is effective, regardless of the formal issues in advance. But what do you do with the remaining 10% who do not agree and who should be sued?
The AG Spandau has now answered clearly and unequivocally (Az. 6 C 395/21): it is not possible. In order to sue for a rent increase, one would have to have effectively requested it beforehand. To do this, you have to justify the request for an increase in the legally prescribed manner, for example with a rent index. However, the document referred to as the "Berlin Rent Index 2021" is not a rent index, as it does not meet the minimum statutory criteria. Therefore, justifying this is not enough.
I recently heard something similar in a hearing at the AG Charlottenburg. The formally effective request for an increase thus becomes the new decisive criterion for the success of these processes.
But once you have taken this pre-trial hurdle, the content is usually little risk left. Because the reports that I have seen in the last 6 months show results that are well above the rent index values, especially for current valuation dates.
The result confirms mine Recommendation from May last year for new rentals: get an expert's report on the current local comparative rent beforehand. A rental of 10% above this value is allowed. The next rent index (2023) will have September 01.09.2022st, XNUMX as the reference date. If this again results from a survey and avoids the current shortcomings, the courts will follow it with a certain probability. The time window for expert opinions then closes. However, if you have previously agreed a valid rent with a current appraisal, this will remain as the previous rent in the following tenancies, regardless of what the rent index then shows.
The court of appeal (LG Berlin ZK 67) does not follow the view of the AG Spandau, but declares that the rent index 2021 is sufficient as a means of justification: