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Real estate in Düsseldorf
Photo: Marcel Kusch / dpa
Since 2015, tenants in many metropolitan areas have been able to invoke the rent cap.
So that rents do not go through the roof and people with less money also have a chance, the regulation is intended to curb the increase in rents by law.
The core of the regulation: The landlord may ask for a maximum of the local comparative rent, plus a surcharge of a maximum of ten percent.
An exception applies, however, if the previous tenant has already paid more.
Then the landlord can continue to demand this rent.
But what if the property was not previously used as an apartment, but commercially?
The Federal Court of Justice has now ruled on such a case - and not in favor of the landlord.
The exception to the rent brake does not apply if the apartment was previously rented as an office.
This exception only applies if the apartment was previously rented for living, decided the BGH in Karlsruhe.
A landlord who recently rented out commercially could not refer to it, according to the judgment published on Wednesday.
(Az. VIII ZR 374/18)
The applicant may only pay just under 700 euros
In the specific case from Berlin, the tenant should pay 950 euros per month for her two-room apartment, which is around 76 square meters in size.
This is how much a previous tenant had paid who lived in the apartment until 2012.
After that, however, the rooms were rented out as an office for more than three years for 900 euros.
The plaintiff therefore believes that the rent of the previous tenant does not matter.
You only owe the maximum rent allowed - according to your calculation, just under 700 euros.
The BGH now agrees: Only the amount that the direct previous tenant has paid for living can be considered as pre-rent within the meaning of the law.
With the exception of the rent brake, the legislature wanted to protect landlords in particular who had just invested in newly built apartments, trusting a certain rent level.
A landlord who has decided to change the use and has rented the apartment commercially cannot claim a comparable level of trust.
Neither the rent of the previous tenant nor the office rent counts.
The Berlin Regional Court now has to negotiate the dispute again because nothing has been determined about the local comparative rent.
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beb / dpa
