Facts and course of proceedings:
The plaintiff is a tenant of a flat of the defendant in Berlin. In July 2015, the defendant, a limited partnership represented by the property management, requested the plaintiff by letter to agree to an increase (explained in more detail) of the net cold rent from € 807.87 to € 929.15 with reference to the Berlin rent index. The plaintiff initially complied, but shortly thereafter revoked his consent. Subsequently, from October 2015 to July 2016, he only paid the monthly rent increase of €121.18 with reservation. With his complaint, he demanded the repayment of the increase amounts paid for these ten months totalling € 1,211.80 as well as a declaration that the net cold rent of the flat he rented had not increased.
The action was not successful in the previous instances. The court of appeal assumed that, in principle, a consumer's right of revocation under distance selling law also existed in the case of tenants' declarations of consent to requests for rent increases (§ 558a para. 1, § 558b para. 1 BGB). In the present case, however, there was no consumer contract concluded at a distance (§ 312c.1 BGB). This was because the rent increase agreement between the plaintiff as a consumer and the defendant, who let flats commercially, had been concluded using exclusively means of distance communication (letter), but not "within the framework of a distribution or service system organised for distance selling" (§ 312c para. 1 subpara. 2 BGB). With the appeal admitted by the court of appeal, the plaintiff pursued his claim further.
The decision of the Federal Supreme Court:
The VIII Civil Senate, which is responsible, among other things, for residential tenancy law, rejected the appeal. Civil Senate of the Federal Court of Justice dismissed the appeal and ruled that - contrary to a view partially expressed in the literature - the tenant's consent to a rent increase demand of the landlord pursuant to § 558 para. 1 BGB is not covered by the scope of application of the consumer revocation in distance contracts and the tenant is not entitled to a right of revocation in this respect.
The wording of Section 312 (4) sentence 1 of the German Civil Code (BGB) does extend the right of revocation to "contracts for the letting of residential accommodation". However, the scope of application of this provision is to be interpreted restrictively to the effect that a tenant's right of revocation does not apply in the case of a declaration of consent to an increase in rent demanded by the landlord in accordance with §§ 558 et seq. BGB is not given. This follows from the regulatory purpose of both the provisions on rent increases up to the local comparable rent (Sections 558 et seq. BGB) and the provisions on the consumer's right of revocation in distance contracts.
This is because the right of revocation of the tenant of a flat provided for in Section 312 (4) sentence 1 of the German Civil Code (BGB) is intended to counteract wrong decisions due to the risk of psychological pressure as well as the tenant's typical lack of information. In the case of rent increases up to the local comparative rent, this objective of the law is taken into account by the provisions for the protection of the tenant provided for in Sections 558 et seq. of the German Civil Code. BGB already take full account of this objective. Pursuant to Section 558a (1) of the German Civil Code (BGB), the landlord must give reasons for the request for a rent increase (to be declared in text form). This is intended to give the tenant the opportunity to check the factual justification of the request for an increase. This alone enables the tenant to form his or her legal will without an information deficit and outside of any pressure situation. In addition, the fact that the landlord can sue for consent at the earliest after the expiry of the second calendar month after receipt of the rent increase demand (Section 558b (2) of the German Civil Code (BGB)) gives the tenant a reasonable period of time to consider whether and, if so, to what extent he agrees to the rent increase. Thus, the provisions of §§ 558 ff. BGB already ensure that the purpose of the consumer protection regulations for distance contracts is fulfilled.
This does not affect the Senate's case law on the tenant's right of cancellation in the case of consumer contracts between a landlord and a tenant concluded away from business premises (previously: in a doorstep situation) (BGH, judgment of 17 May 2017 - VIII ZR 29/16, NJW 2017, 2823 marginal no. 11 et seq.).
Judgment of the BGH of 17 October 2018 - VIII ZR 94/17
Lower courts:
Pankow-Weißensee Local Court - Judgment of 5 august 2016 - 6 C 64/16
Berlin Regional Court - Judgment of 10 March 2017 - 63 S 248/16
Source: Press release of the Federal Supreme Court of 17.10.2018
GoldbergUllrich Attorneys at Law 2018
