If a living room and a basement room are rented separately with two contracts, the rent cap does not apply to the basement room. This was decided by the Federal Court of Justice (BGH; case reference: VIII ZR 94/21). In the case in question, tenants had paid an apartment for an initial basic rent of 850 euros. They also concluded a cellar usage agreement with their landlord for EUR 79 per month. The rent for the cellar was to increase by 2.5 percent at the beginning of each new contract year.
After a few months, the tenants living in Berlin complained to the landlord. They now assumed that the rent brake was not being observed for a total rent of 929 euros. The rent freeze applies in tight housing markets such as Berlin. It states that the rent for new rentals may not exceed ten percent of the local comparative rent.
The case first landed before the district court and then the regional court in Berlin, which ruled in favor of the tenants, and then before the Federal Court of Justice. The court concluded: "In this case, only the initial rent of €850 agreed by the parties for the apartment is subject to review on the basis of the provisions on the limitation of the amount of rent (Sections 556d et seq. BGB), but not the usage fee of €79 agreed for the use of the cellar." In the present case, both contracts are "independent".
Sources: juris.bundesgerichtshof.de; AZ: VIII ZR 94/21/haus-und-grund.com
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