The tenant of an apartment in Dresden agreed in writing to the rent increase demanded by the landlady in 2007, 2009, 2011 and 2013. In a legal dispute in 2013, he demands that the landlady repay part of the rent already paid (AZ VIII ZR 234/18). He justifies this demand by claiming that the floor area of his apartment was calculated incorrectly. This is because the landlady assumed 113 square meters when calculating the rent. No living space was specified in the rental agreement. According to later calculations, the floor area was actually only 102 square meters.
The Federal Court of Justice (BGH) nevertheless rejected the tenants' claim. Because although the calculations of the rent increase were actually carried out on the basis of an incorrectly calculated apartment area, the demands were below the local comparative rent in all years. In addition, the rent increase demand is effective, because both tenants have previously agreed on an increase in rent.
Although a calculation error on both sides could in principle lead to an adjustment, the prerequisite for this under Section 313 of the German Civil Code is that essential points of the contract, which formed the basis for the conclusion of the contract, have proven to be incorrect and a contractual relationship would not have come about under these circumstances. Even if an incorrect calculation of the basic rent could constitute such an argument, the increase in rent is reasonable for the tenant, as this is below the local comparable rent in all years.
Source: BGH
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