Important information on tenancy law
A. Conclusion of the contract
It used to be common for a landlord to commission a letting agent, while the tenant had to pay for it. This has changed. For brokerage contracts that were concluded after 1.6.2015, the “Bestellerprinzip“ applies: the one who commissions the letting agent has to pay.
Tip: We recommend paying „showing fees“ (Besichtigungsgebühren) or similar illegal charges in the first place. This way, you can make sure you get the apartment you‘re interested in. You can still demand a refund after the contract was concluded.
The deposit cannot be higher than 3 monthly rents (without the additional cost flat rate or advance payments). You can pay in 3 instalments, the first one would be due at the beginning of the tenancy. The landlord must pay interests on the deposit and put it in a bank, separated from his or her own assets.
Tip: The best thing is to have a savings account in the name of the tenant with a blocking notice in favor of the landlord. You can also recommend a bank or a form of saving with high interest rates. For the billing and the return of the deposit after the end of the contract, the landlord has an examination and reflection period of conceivably more than 6 months.
Important: Do not pay – no matter if commission, rent, or deposit – without requiring a receipt!
A rental contract doesn’t have to be concluded in written form, but it is difficult to prove it before moving in if it was concluded orally. If you move in without a written contract, only what has been agreed orally is valid, together with the tenancy law of the German Civil Code (BGB) which is usually more convenient than all written form contracts. In written contracts, many other agreements can be made. There is no such thing as a “standard rental contract“. However, on the market there are many rental contract forms that are usually drafted from the point of view (and to the benefit) of the landlord.
Tip: You can find tenant-friendly forms at the Tenants’ Association.
But beware: not everything written in a rental contract form is legally binding. Some clauses could be invalid, usually protecting the tenant. We recommend having the rental contract examined before (if there’s enough time for that) or after signing it in order to get clarity about the content and its validity.
However, you also shouldn’t immediately question such clauses as you might risk to jeopardize the conclusion of the contract. Just keep it into consideration for any occurrence.
The rent can be either a flat rate rent (all inclusive), a gross cold rent (including operating costs, heating costs charged separately), or a net cold rent (all additional costs charged separately as an advance payment or in a lump sum).
Important: the rental contract must contain the explicit provision that additional costs are calculated in addition to the rent. If that’s not the case, you do not need to pay additional costs. Only operating costs that are mentioned in the contract can be charged to the tenant. A reference to section 2 of the German Regulation on Operating Costs, where all permitted operating costs are listed, is sufficient.
But beware: paying for several years in a row operating costs which had not been agreed can be seen as a tacit modification of the contract and can imply a contractual obligation for the future. For this reason, you should have the operating costs bill immediately examined!
If you pay an additional costs flat rate, then everything is already settled. You don’t need to make subsequent payments if the actual costs were higher than the flat rate. However, you also won’t receive a refund in case the costs were lower.
Tip: if you struggle paying the rent, you should check if you can apply for a housing allowance (Wohngeld). Unfortunately, only students who are not entitled (anymore) to claim for the BAföG can receive a housing allowance. If you’re not sure, apply for the housing allowance and have your application checked.
The approval for a rent increase can only be demanded to the tenant via a written increase declaration if:
- The rent has remained unchanged for at least one year,
- The new rent doesn’t exceed the local reference rent,
- The rent won’t be increased by more than 20% within 3 years (or 15 % in all cities and communities with a rent control (Mietpreisbegrenzung), e.g. Heidelberg and Eppelheim).
The rent increase must be justified with a reference to a rent index, the identification of three comparison objects or by presenting an expert report. Only in the cities of Heidelberg and Mannheim the rent index provides information about the local reference rent (net cold rent for rented living space). A rent index for student residences doesn’t exist!
A graduated rent or an index rent (i.e., the rent increase is already specified in the contract) is generally permitted. The rent must however remain unchanged for at least one year. During the duration of the graduated rent, a rent increase is excluded and only additional costs can be increased.
Important: In case of a rent increase, the tenant has a special right of termination!
Rent reduction is allowed in case of damages or defects in the flat. The amount depends on the level of the damage. If the damages are not eliminated, the tenant can fix them at the landlord’s expense (substitute performance). The tenant might also have an extraordinary termination right.
Important: the tenant must show the defect to the landlord. If a dispute arises, the tenant must prove the existence of the defect and its timely notification. It is therefore advisable to settle everything in written form. In case of (energy-related) renovation measures, the right of the tenant of a rent reduction might be restricted.
If a new rental contract signed after the 1.10.2015 is 10% higher than the local reference rent (for Heidelberg the rent index), the rent control might be applied in Heidelberg, Eppelheim, Sandhausen, Leimen and Dossenheim. In this case, you need a consultation to know if you can make a reclaim after moving in. Exceptions are new buildings and completely renovated flats.
But beware: According to a ruling of the Stuttgart Regional Court (Landgericht Stuttgart), the assertion of claims in Baden-Württemberg is currently not enforceable. However, an improvement of the legal regulation is foreseeable in the near future.
A renovation must be tolerated by the tenant if it is necessary to improve the flat or the house, for saving energy or water or to create new living space.
Exception: if the measures represent a non-justifiable hardship for the tenant, they do not need to be tolerated. The landlord must inform in written form about the type, extent, commencement and estimated duration of the works 3 months before their inception, as well as about the anticipated rent increase. Unless in case of significant improvements and non-significant rent increase, the tenant has a special termination right.
If a change of ownership takes place on the landlord’s side, the rental contract won’t be affected, and it is not necessary to make a new contract. Even in case of death of the landlord, the contract will continue with the heirs. When transforming rental flats in owner-occupied flats, the former landlord can only terminate the contract following the general termination rules, i.e., he needs a reason for termination. If the transformation in an owner-occupied flat takes place after it has been rented and the flat is then sold, the new owner can terminate the contract only five years after the sale.
The sublease of a flat is only possible with the permission of the landlord. In case of legitimate interest, the landlord is obliged to give his consent.
But beware: the flat cannot be overcrowded during the sublease (rule of thumb: not more than one person per room). In case of sublease, the landlord might have the right to increase the rent, the additional cost flat-rate or the advance payment.
A change of tenant in case of more than one main tenant (especially for shared-apartments) must be communicated to the landlord. The landlord might have the right to disapprove the proposed new tenants. He can also claim to be informed about the names of the subtenants of a shared-apartment who are not under the rental contract. The notification to the landlord must be made before the beginning of the respective sublease. Subtenants in the shared-apartments conclude a sublease contract with the main tenant/s which automatically ends with the main rental contract.
If the landlord doesn’t allow a sublease, the tenant can terminate the contract giving a 3 months’ notice. For the sublease, different periods of notice might apply.
Animals can be kept in the flat only with the consent of the landlord, unless otherwise specified in the contract. However, small animals in cages or fish in aquaria cannot be forbidden. It can furthermore only be forbidden to keep dogs and cats if they might cause damage or disturbence. A general prohibition of keeping animals is not valid, no matter what the rental contract states!
D. Termination of the tenancy
A tenancy agreement can be ended through termination (in case of a tenancy agreement for an indefinite time) or through expiry of the term (in case of a temporary rental contract).
A termination, no matter if by the tenant or the landlord, must always be done in written form and be signed by respectively sent to all tenants or landlords or those concerned.
The ordinary termination for the tenant is permitted from the third working day of the month for the end of the after next month (3 months period). The relevant time is the receipt of the termination notice. After 5 and 8 years since the rental start, the period of notice is prolonged of respectively 3 months. For living spaces that are rented for temporary use, shorter periods of notice can be agreed for both parties. If a landlord rents single furnished rooms in a flat in which he lives, the termination can take place for both parts not later than the 15th of a month for the end of that month. (For rental contracts which were signed before 01.09.2001, other regulations might apply.)
Important: The statutory periods of notice apply both for the landlord and for the tenant. The three-month notice period can only be shortened with the consent of the landlord. The common assumption that it is sufficient to nominate new tenants in order to compel the consent of the landlord to move out immediately is false!
Special right of termination: In case of rent increases or performance of renovation measures, the tenant might be entitled to terminate the contract with a shorter period of notice.
A termination without notice is possible for good cause:
For both parties: when a contracting party consistently disturbs the peace of others.
For the tenant: if the contractual use is not guaranteed, the flat has significant harmful damages or the damages have not been eliminated despite warnings.
For the landlord: in case of improper use despite warnings (e.g., unauthorized sublease), serious breaches of obligations and disturbance of the peace, constantly unpunctual payments or rent arrears of over two months.
The security of tenure does not allow the landlord to terminate a contract offhand. Only the one who has a legitimate interest in ending a tenancy agreement can terminate it. The reasons could be the personal use (the landlord needs the flat for him/herself or for a relative) or the prevention of an appropriate commercial utilization (e.g. planned sale or renovation).
The landlord doesn’t need any reason for termination if the flat is located in the house inhabited by the landlord and there are only 2 flats. The same applies if the rented rooms are in the flat inhabited by the landlord. If the rooms are furnished, a termination notice is valid until the 15th of a month for the respective end of the month.
The termination notice can be opposed if it would signify a disproportionate hardship for the tenant (social clause). In this case, you should absolutely take legal advice! Contract terminations should always be checked for formal errors.
Temporary rental contracts are admissible in full in favor of the tenant. They are only allowed in favor of the landlord if a reason for the time limitation is already specified in the rental contract (this reason must correspond to a reason for termination). Temporary rental contracts are valid under the said preconditions for the agreed period and cannot be terminated without a good cause, e.g., change of study location, termination of studies etc., but also marriage (possibly also non-marital partnership) and pregnancy if for these reason the living space is not sufficient.
The tenant also needs to find a new tenant. Having found a cheaper room does unfortunately not qualify as a good cause! A waiver of termination can be specified in the contract, but it is only valid if it is limited to no more than a four-year period.
For rental agreements with students, the duration of the permissible waiver of termination has not been precisely clarified by lawmakers or courts. However, under no circumstances can such an agreement still be binding more than two years after it was concluded.
E. Restitution of the living space
When the rental agreement has been successfully ended, the rooms or the flat must be completely cleared (possibly the cellar and the garage too) and all keys (also self-made copies) must be restituted. If nothing is specified in the contract, the flat must only be cleaned but not renovated.
The majority of rental contracts obligate the tenant to cosmetic repairs. However, they can only include: painting and wallpapering ceilings and walls, painting the floors (hardly relevant nowadays), radiators, heating pipes, inner doors, as well as windows and outside doors from the inside. Real reparations don’t belong to the cosmetic repairs (maintenance obligation for the landlord!), though damages caused by the tenant must be repaired.
Important: many pre-formulated clauses on cosmetic repairs, especially those in older contracts, are not valid according to the case law of the German Federal Court of Justice (Bundesgerichtshof). In particular, tenants never have to renovate if they have received the apartment in unrenovated condition. In case of a contract termination, a competent examination of the original agreement is therefore recommended.
Tip: let the landlord confirm the proper return of the flat, e.g., through an acceptance record, in order to avoid unpleasant surprises later. Furthermore: bring at least one witness with you while returning the flat, and possibly take some pictures of the flat with him/her before the restitution!
If you don’t move out in time, you will need to pay a compensation for use (equal to the current rent, or higher). If you have terminated the contract, you might also need to pay the damages, for example if the next tenant is not able to move in in time.
F. Diverging provisions for student residences
On the whole, the general law of tenure is also valid for student residences, but there are some peculiarities:
» Deposit: it is not mandatory to pay interests on the deposit. However, Studierendenwerke usually pay interests on them internally. These interests are credited as income for the student residences which in turn allows a rent reduction for all inhabitants.
» Rent: rents are calculated following the II. Calculation Regulation (Berechnungsverordnung). Rent increases in case of increased costs are possible at any time, just as for social housing. The Law on Rent Rate (Miethöhegesetz) and the Heating Costs Ordinance (Heizkostenverordnung) do not apply to student residences.
» Rental contract: temporary contracts are allowed without limitations (principle of rotation).
»Termination: for temporary contracts only possible for good cause.
»Termination without notice: same as for other rental agreements.
»Temporary rental contract: generally allowed for student residences.
» Security of tenure: concerning temporary rental contracts, the continuation of the agreement usually cannot be requested, since the legitimate interest for the time limitation is prescribed by law following the “principle of rotation”. Exceptions may apply if corresponding provisions were included in the usage regulations or in the general rental terms and conditions.
» Moving out: it is generally not necessary to renovate a student residence when moving out, unless it has been specified in the contract. The student is though liable for damages, just like in all other rental agreements.
Information and counselling about tenancy law
» Mieterverein Heidelberg e.V. (Tenants‘ Association), Poststr. 46, 69115 Heidelberg
Tel. 06221/20473 || www.mieterverein-heidelberg.de || firstname.lastname@example.org
- Office hours: Mo-Thu 9-12 am and 2-6 pm, Fr 9 am-2pm; Consultancy for members only (64€ annual contribution).
- Trial membership for students: students receive a legal consultation with a specialist lawyer for 25€, plus a letter to the landlord and the examination of his reply
- Information material: “Tenant’s lexicon“ (700 pgs. for 13€, language: German), „Tenancy law for students“ (for free) and brochures about issues like damages, additional costs, rent increase, etc.
» Free legal advice by the Student Council:
Currently alternating between Tuesdays and Thursdays, 6.30-7.30 pm
StuRa-Büro Altstadt, Sandgasse 7
» Free legal advice by the Studierendenwerk Heidelberg:
Tuesdays from 2.30-4.00 pm
“ServiceCenter am Uniplatz”, Grabengasse 12
» You can get the rent index for Heidelberg at any registration office (Bürgeramt) or at the Tenants’ Association for 5 € – or you can read it online and print it for free under www.heidelberg.de.
Text: Tenants’ Association Heidelberg, status: 11/2019