The tenants of an 85.65 square meter apartment in Berlin are suing their landlord for the pro-rata repayment of the rent paid to date (AZ VIII ZR 369/18). The tenancy has existed since 2016, a net cold rent of 1,199 euros was agreed in the lease. This corresponds to a price per square meter of 13.99 euros. The previous tenants only paid a net cold rent of 485 euros. After the tenants moved out, the apartment in the old building was vacant. The landlady had numerous and extensive construction measures carried out on the apartment. The work included, among other things, the renewal of the electrical system and the sanitary facilities in the bathroom, the installation of heating pipes laid over the plaster in the floor as well as the installation of tiles and parquet flooring and the first-time installation of a kitchen.
In a letter in May 2016, the tenants complained that the landlord had violated sections 556d et seq. of the German Civil Code (BGB) on limiting the amount of rent. From the tenants' point of view, the agreed net cold rent exceeded the local comparative rent by more than 10 percent. At this point in time, this would be a price per square meter of 8.74 euros and thus a monthly rent of 748.58 euros. The tenants demand repayment of the overpaid rent for the months of June to November 2016. They also demand a declaration from the landlady that they do not have to pay a higher rent. The Regional Court rules in favor of the landlord and refers to Section 556f Sentence 2 of the German Civil Code (BGB), according to which the rent brake does not apply if modernization has previously taken place.
However, this section only applies if the modernization costs reach at least one third of the costs for a comparable new apartment. Only modernization measures from the catalog of § 555b BGB may be taken into account here. Likewise, after the modernization work, the apartment must show a significant qualitative improvement in almost all areas, such as sanitary facilities, windows, flooring, electrical installations and others. Following the tenants' appeal and the ruling of the Federal Court of Justice (BGH), the Regional Court must re-examine whether the construction measures and the costs are to be classified as modernization costs and reach the required level pursuant to Section 556e (2) BGB.
Source: BGH
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