After carrying out modernization work on an apartment building in Berlin, the landlady wants to claim a rent increase. The landlady had insulation work carried out on the exterior façade and the top floor ceiling of the property, which was built in 1929, enlarged the balconies by five square meters and had a decommissioned elevator put back into operation. The costs for the modernization measures were to be passed on to the tenants.
One of the tenants filed a lawsuit against the rent increase and referred to the hardship provision (Section 559 (4)) laid down in the German Civil Code (BGB), because the single recipient of unemployment benefit II cannot afford the rent (AZ VIII ZR 21/19). Until now, he paid a monthly cold rent of 574.34 euros plus 90 euros heating allowance for his apartment of just under 86 square meters, in which he has lived since he was five years old. This is to be increased after the modernization measures around 240 euro monthly. The tenant's unemployment benefit at the time is 463.10 euros.
The Federal Court of Justice (BGH) has approved the assumption of a case of hardship in this case and also takes into account the rootedness of the tenant, according to which he does not have to move into a smaller apartment to which he is officially entitled. However, the Berlin Regional Court still has to examine whether the tenant can also invoke the hardship provision under Section 559 (4) sentence 2 nos. 1 and 2 BGB. Accordingly, it is to be examined whether the modernization measures merely brought the apartment building into a "generally customary condition" or whether the landlord was forced to modernize the property.