The living space is decisive for rent increases

The VIII. Civil Senate of the Federal Court of Justice (BGH) had to decide whether the contractually agreed living space is to be used as a basis for a rent increase according to § 558 BGB even if the actual living space is smaller (to the disadvantage of the tenant).

The defendant is the tenant of a flat owned by the plaintiff in Hamburg. In the tenancy agreement the living space is stated as 55.75 sqm. The actual living space is 51.03 sqm. By letter of 24 November 2006, the plaintiff requested the defendant's consent to a rent increase from €360.47 to €432.56, corresponding to €7.76 per sqm, as of 1 February 2007. In doing so, she took as a basis the living space of 55.75 sqm stated in the tenancy agreement.

The district court granted the application for approval of the requested rent increase. The court of appeal dismissed the defendant's appeal against this decision. The defendant's appeal was unsuccessful.

The Federal Supreme Court (Bundesgerichthof) has ruled that a rent increase demand pursuant to Section 558 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) is to be based on the living space stated in the tenancy agreement and not on the lower actual living space if the deviation in area does not exceed 10 %. In such a case, the deviation is within the tolerance limit for the binding nature of living space agreements, as the Senate has also assumed for the case of a deviation of the living space that is to the landlord's disadvantage. The contractual stipulation of a larger living area than the one actually available is not an agreement that deviates from the provisions of §§ 557, 558 BGB on rent increases to the detriment of the tenant and would therefore be invalid pursuant to 557 (4) or § 558 (6) BGB. These protective provisions only concern agreements that change the formal or material prerequisites of a rent increase according to § 558 BGB. However, the parties did not make such an agreement by contractually specifying a certain living space. The indirect effect of a living space agreement on the rent amount, on the other hand, is not covered by the protective purpose of these provisions. Only if the materiality limit of 10 % is exceeded is it no longer reasonable for the contracting party adversely affected in each case to be held to this agreement, and consequently the actual living space is decisive.

Judgment of the Federal Supreme Court of 8 July 2009 - VIII ZR 205/08

Lower courts:

AG Hamburg - Judgment of 5 December 2007 - 46 C 32/07

LG Hamburg - Judgment of 8 July 2008 - 316 S 22/08


Source: Press release of the BGH


Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)