Facts and Course of Proceedings:
The plaintiff is the tenant of an apartment owned by the defendant in Berlin. In July 2015, the defendant, a limited partnership represented by the property management, requested the plaintiff in writing, with reference to the Berlin rent index, to agree to an (further explained) increase in the net cold rent from €807.87 to €929.15. Although the plaintiff initially complied, he shortly thereafter revoked his consent. Subsequently, from October 2015 to July 2016, he paid the monthly increased rent of €121.18 only under reservation. With his lawsuit, he demands the repayment of the increased amounts totaling €1,211.80 paid for these ten months, as well as a declaration that the net cold rent of his rented apartment has not increased.
The lawsuit was unsuccessful in the lower courts. The appellate court assumed that, in principle, a consumer's right of withdrawal under distance selling law also exists for a tenant's declarations of consent to rent increase requests (Section 558a (1), Section 558b (1) BGB). However, in the present case, there was no consumer contract concluded by distance selling (Section 312c (1) BGB). This is because the rent increase agreement between the plaintiff as a consumer and the defendant, who commercially rents apartments, was indeed concluded exclusively using means of distance communication (letter), but not “within the framework of a sales or service system organized for distance selling” (Section 312c (1) half-sentence 2 BGB). With the appeal permitted by the appellate court, the plaintiff continues to pursue his claim.
The decision of the Federal Court of Justice:
The VIII Civil Senate of the Federal Court of Justice, responsible inter alia for residential tenancy law, rejected the appeal and ruled that – contrary to an opinion partially held in legal literature – the tenant's consent to a landlord's rent increase request declared pursuant to Section 558b (1) BGB, in accordance with Section 558 (1), Section 558a (1) BGB, is not covered by the scope of consumer withdrawal rights in distance contracts, and the tenant is not entitled to such a right of withdrawal.
While the wording of Section 312 (4) sentence 1 BGB extends the right of withdrawal to “contracts for the rental of residential premises,” the scope of this provision must be interpreted restrictively to mean that a tenant does not have a right of withdrawal when consenting to a rent increase requested by the landlord under Sections 558 et seq. BGB. This stems from the regulatory purpose of both the provisions concerning rent increases up to the local comparative rent (Sections 558 et seq. BGB) and the provisions regarding the consumer's right of withdrawal in distance contracts.
The right of withdrawal for tenants of an apartment, as provided for in Section 312 (4) sentence 1 BGB, is intended to counteract erroneous decisions resulting from the risk of psychological pressure and the typical information deficit experienced by tenants. For rent increases up to the local comparative rent, the provisions for tenant protection outlined in Sections 558 et seq. BGB already fully address this legislative objective. Pursuant to Section 558a (1) BGB, the landlord must provide reasons for the rent increase request (which must be declared in text form). This is intended to give the tenant the opportunity to verify the factual justification of the increase request. This alone enables the tenant to form their legal will without an information deficit and outside of any potential pressure situation. Furthermore, by allowing the landlord to sue for consent no earlier than after the expiration of the second calendar month following receipt of the rent increase request (Section 558b (2) BGB), the law grants the tenant a reasonable period for consideration, during which they can decide whether and to what extent they agree to the rent increase. Thus, the provisions of Sections 558 et seq. BGB already ensure that the purpose of consumer protection regulations for distance contracts is fulfilled.
The Senate's jurisprudence regarding the tenant's right of withdrawal in consumer contracts concluded off-premises (formerly: in a doorstep situation) between a landlord and a tenant (Federal Court of Justice, Judgment of May 17, 2017 – VIII ZR 29/16, NJW 2017, 2823 para. 11 et seq.) remains unaffected by this.
Judgment of the Federal Court of Justice of October 17, 2018 – VIII ZR 94/17
Lower Courts:
Local Court of Pankow-Weißensee – Judgment of august 5, 2016 – 6 C 64/16
Regional Court of Berlin – Judgment of March 10, 2017 – 63 S 248/16
Source: Press release of the Federal Court of Justice of October 17, 2018
GoldbergUllrich Attorneys at Law 2018
