Published by Judgments of May 24.05.2022, 65 on Az. 189 S 21/09.06.2022 and of June 67, 50 on Az. 22 S XNUMX/XNUMX
Two different rental appeal chambers of the Berlin Regional Court have dealt with the 2021 rent index: one considers its content to be applicable, the other at least for a formally sufficient justification for rent increases. Let's take a closer look:
Variant 1: Rent index 2021 = simple rent index
The Civil Chamber 65 has decided to change the rent index 2021 for a simple rent index iSd. § 558c Civil Code to keep. The – quite long – chain of arguments is as follows:
- The law does not make any requirements for the creation of simple rent indexes.
- The law does not place any requirements on data collection for a simple rent index or whether there is any data collection at all.
- Simple rent indexes can be updated. There are no legal requirements for this.
- The 2019 rent index is an updated, qualified rent index for 2017. At the same time, it is also a "newly created" simple rent index. Because if there are no legal requirements for "simple" rent index according to the above, a qualified updated rent index can also be a newly created simple rent index.
- As a newly created simple rent index, the rent index 2019 can in turn be updated once. The reference to a 4-year survey period, which is taken over from the 2019 rent index, is therefore part of the transitional regulation Art. 229 § 50 EGBGB covered.
- Since there are no legal rules for this update, it is harmless that no data was collected for the rent index 2021.
Page 12, bottom half, quote:
"However, since the law and the BBSR instructions do not specify any requirements for the creation of a simple rent index, especially not with regard to the database, any adjustment of a (simple and/or qualified) rent index ... represents a new creation of a simple rent index. "
According to pages 2021 and 15 of the judgment, the fact that the 16 rent index was not recognized by all of Berlin's landlord associations does not harm. Because by participating in the rent index working group, they would have contributed, that's enough.
The whole judgment, which is still unpublished at the time I am writing this, can be found here:
Variant 2: Rent index 2021 sufficient as justification, otherwise irrelevant if the rent could already be demanded according to the rent index 2019
The judges of Civil Chamber 67 take a somewhat different approach. This judgment has now been published, so I will not post it again here.
First of all, the court finds that a request for a rent increase with reference to the 2021 rent index is formally sufficiently justified. The sole purpose of the statutory obligation to give reasons is to give the tenant initial indications of the factual justification of the request for a rent increase. In any case, the Berlin rent index 2021 satisfies these minimum requirements for providing a first indication, even if it only extrapolates the rent index 2019 linearly and thus possibly from a shorter one than the one in § 558 paragraph 2 BGB new version designated reference period.
Whether the Berlin rent index 2021, which is suitable as a formal means of justification, is also suitable, according to the court at least by way of the estimate § 287 ZPO The judges did not want to make a final decision on the determination of the disputed local comparative rent between the parties and declared it to be irrelevant. Because they could in any case according to the comparative rent § 287 ZPO based on the Berlin rent index 2019, which is suitable for a judicial estimate. Because the rent demanded by the landlord here was already justified according to the 2019 rent index. The local rent would then have had to drop by more than 5% in order to be relevant to the process. That's with the for an estimate after § 287 ZPO sufficient degree of conviction unlikely.
3. Inconsistency of the district court case law
For the 2015 rent index, there was already a discussion about its usefulness for determining the local comparative rents. The Civil Chamber 63 of the Berlin Regional Court ruled on Az. 63 S 230/16 as follows (ziiter after juris marginal numbers 8 and 9):
"In particular, according to the chamber, the rent index 2015 according to § 287 ZPO as a simple rent index should not be used as the basis for the estimate. In the context of the estimation according to § 287 ZPO, a suitable estimation basis is required. § 287 ZPO does not specify the type of assessment basis. However, the estimate may not be made on the basis of incorrect or obviously irrelevant considerations, nor may essential facts determining the decision be disregarded. In addition, the court may not dispense with specialist knowledge that is essential under the circumstances in questions that are central to the decision on the dispute. In appropriate cases lists or tables can be used in the damage estimation. However, the judge of fact is only free in principle when using suitable lists. When the court has reasonable doubts as to the adequacy of a list, its discretion as to its use may be limited and it may have to refuse to use a particular list. The judge of fact is therefore required to subject possible lists or other bases of estimation to a plausibility check (Federal Court of Justice, judgment of October 24, 2017 - VI ZR 61/17 -, paragraphs 28 - 29, juris). Nothing else emerges from the judgment of the BGH (judgment of February 13, 2019 - VIII ZR 245/17 -). There, the BGH states that it depends on the circumstances of the individual case whether the rent index is sufficient for the assessment of the local comparative rent of a specific apartment to be assessed. In particular, the quality of the (simple) rent index and the objections of the parties to the cognitive value of the information contained therein are decisive for the range of the indicative effect (Federal Court of Justice, judgment of February 13, 2019 - VIII ZR 245/17 -, para. 17, juris ). Objections by the parties, as in the present legal dispute, were not raised there (Federal Court of Justice, loc.cit., para. 18).
Measured against these principles, the chamber considers the rent index 2015, the mathematically correct preparation of which was based on the result of the expert report by Prof. Dr. ... does not correspond to recognized scientific rules as an unsuitable basis for estimation. Even the simple rent index must at least follow recognized scientific principles when it is created. Is it already missing or, the data on which the creation is based has not been evaluated according to recognized established principles, In the Chamber's opinion, the basis for the estimate is not only representative but also lacks suitability within the meaning of § 287 ZPO (cf. also Constitutional Court of the State of Berlin, decision of December 19, 2018 - 122/16 - para. 8)."
Unlike the ZK 65 in variant 1 above, the ZK 63 is of the opinion that even a simple rent index must follow minimum criteria for its creation. If this is not the case, it does not reflect reality, but at most an assumption of it. In the light of constitutional considerations - namely state constitutional considerations - one cannot so easily ignore this hurdle. The decision of the VerfGH Berlin of December 19.12.2018, 122 (16/1), referred to in the above-cited LG judgment, draws a fundamental line in the freedom of judicial discretion, which must not be undercut (according to juris, guiding principle to XNUMXb):
"With a view to these constitutional requirements, a specialist court justification approach raises concerns that would allow rent indexes with unrealistic values to be used as the basis for decisions on rent disputes, without leaving the landlord an opportunity to prove the actual local comparative rent. Such a procedure would make it unreasonably difficult for the court to enforce the legally permissible rent and would be unconstitutional.”
Against this background, I find it a pity that the ZK 65 did not allow the revision in the decision on Variant 1. That would have given the BGH the opportunity to help the practice find a uniform approach.
4. Note
A simple rent index carries no legal presumption that it is correct. It can therefore be refuted, for example by expert opinions.