Reversal of the Berlin rent cap – questions and answers
1. The Federal German Constitutional Court has declared the rent cap law as “null and void”. Which effects does that have on the amounts saved due to the rent cap?
Note: Rent amounts retained or reduced due to the law must be paid back.
The question if it must be repaid in one sum or immediately or if you can wait with repayment, is answered below. In addition there are exceptions to the repayment obligation. In case of doubt, please ask for our legal advice before you make repayments!
First of all, we will find out in which specific situations/cases the lessor is entitled to demand repayment of the partial rent amounts (starting with question no. 2). Then we will tell you when these repayments are to be made (starting with question no. 10). Rent cap cases which were or will be negotiated in court, are discussed starting with question no. 18.
2. Can I wait with the repayment until my landlord’s/lessor’s request to do so?
3. Can I wait for the lessor’s request even if a higher rent was agreed in my rental contract concluded after 23 February 2020 than the rent I have paid due to the rent cap until now (shadow rent)?
4. How much time do I have for repayment after the lessor has sent a payment request?
5. How long can I wait if I am obliged to make a repayment but the lessor is not obliged to send a prior request?
6. Can I ask the lessor for an instalment agreement and if yes, must he/she accept it?
An instalment agreement is a good and recommendable solution – e.g. as regards the payment starting date and the amount of monthly instalments. Such an agreement should be made in writing to have a better proof. An e-mail request and a confirmation by the lessor of such an arrangement suffice for this purpose. But: The lessor must not offer or accept an instalment agreement. In this exceptional case of an invalid federal law the Berliner Mieterverein however believes that the lessor – due to the principle of good faith – may be obliged to accept an appropriate offer. In this case it is however assumed that you will inform the lessor of your payment difficulties (possibly due to the Corona situation).
7. Am I definitely obliged to make repayments?
8. If rents were not paid or paid late: From when on can lessors terminate the contract?
Firstly, a termination-relevant situation of default must have arisen. If there is a backlog of payments of two full monthly rents (incl. ancillary costs), the tenant in fact risks an immediate termination. In case of a backlog of payments of one full monthly rent plus one cent (incl. ancillary costs), the tenant risks an ordinary termination. The latter presumes the tenant’s fault. This can certainly be excluded since tenants relied on the validity of the rent cap law.
Secondly, tenants would have to be in default. This is the case if the landlord requested or demanded the tenant to pay the difference. Principally, a prior request/dunning letter is not obligatory to terminate the agreement due to owed rent. In this specific case the landlord probably has a special care duty and – according to BMV’s opinion – should ask the tenant for repayment and setting a payment date before terminating the contract. To be on the safe side: Pay the outstanding rent within 14 to 30 days without waiting for a demand of the landlord. Possible exemptions from repayment (see questions 7./14. and 15.) By the way: The lessor associations BBU and BfW declared that their members who manage approx. 1 million flats will not send out termination letters based on additional rent claims.
9. I agreed to a rent increase after 18 June 2019 based on the Berlin rent index. Payment was suspended due to the rent cap. Do I now have to repay the higher amounts? From which date on does the “new” rent apply?
10. My rental contract stipulates a stepped rent. Since 18 June 2019 a new scale would have applied. Do I have to repay the difference?
11. My rental contract stipulates an index-linked rent. Do I have to make repayments?
12. I voluntarily agreed – orally or in writing – to an increase of my rent from 18 June 2019 on – what happens now?
13. My landlord modernised the flat. He asked for a rent increase only after the cost capping prescribed by the Berlin rent cap (1.00 €/sqm). Do I now risk a higher rent?
No if the demanded rent increase corresponds to annually 8% of the modernisation costs. Yes if the rent increase corresponding to 8% of the modernisation costs is above 1.00 €/sqm monthly and was reduced due to the cap. In case of measures, however, announced after 1 January 2019, a cap of 2 or 3 €/sqm per month is planned depending on the amount of the initial rent. According to the wording in the rent increase notification this applies retroactively or only with effect for the future.
14. I concluded a rental contract after 23 February 2020. I only paid the capped rent based on the rent cap table. Pursuant to the contract I however owe a „shadow rent” in case the rent cap is ineffective or the law expires. Do I have to repay the difference between the paid rent and the shadow rent or do I owe this rent in the future?
15. Does the rent stop help avoid a full or partial subsequent payment based on the shadow rent agreement – for rental contracts concluded after 23 February 2020 – or based on the rent reduction as of November 2020?
the rent level based on the rent stop
16. Are there cases in which the lower capped rent still applies despite voidness of the Berlin rent cap, i.e. no repayment(s) become(s) due?
17. Do I have to pay interest on repayable amounts or subsequent payments?
18. I receive social benefits – does the authority have to pay the higher contractual rent and make subsequent payments to the landlord?
19. I won a court case against my landlord in a rent cap dispute – is this decision now null and void too?
20. I am still defending my case in court regarding a rent increase – what will happen now?
A different situation exists if you also defend your case against a rent increase based on the assignment of residential amenity features, i.e. objecting to content-related factors. In this case proceedings on the rent increase can be continued basing them on the Berlin rent index.
21. My landlord sues me for grant of approval of a rent increase (“Zustimmungsklage”) in connection with the rent cap. I received the letter after 15 April 2021, i.e. before announcement of the Constitutional Court’s decision. What will happen now?
22. A court decided that the re-letting rent was ineffective – can I rely on this?
23. Based on which regulations can landlords now demand rent increases?
24. At present, I cannot repay the rental amounts saved in the past. Who can help me, what can I do?