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BGH: Cumulative rent increase permissible

The Federal Court of Justice (BGH) has ruled that rent increases pursuant to Section 559 of the German Civil Code (BGB) and Section 558 of the German Civil Code (BGB) can be enforced independently of each other.

In the underlying decision, the defendant landlord carried out a structural change in the plaintiff tenant's flat in 2010. Among other things, she converted a WC into a bathroom. In a letter dated 29 October 2010, the landlady demanded consent to an increase of the rent by €37.32 up to the local comparable rent (§ 558 BGB). In this respect, she referred to six comparable flats equipped with a bathroom. The tenant declared her consent. In a further letter dated 30.08.11 the landlady increased the rent by a further € 116.53 as of 01.05.12 due to modernisation measures in accordance with § 559 BGB. The tenant objected to this increase.

Thereupon, the landlady reduced the second increase by the rent increase from 2010 in the amount of € 37.32 to € 79.21. The tenant only paid this monthly amount of 79.21 € with reservation and sued for repayment of the amounts paid with reservation and for a declaration that she did not owe the modernisation surcharge of 79.21 €.

After several decisions in previous instances, the Federal Supreme Court (BGH) now had to decide whether a landlord may demand rent increases according to § 558 and § 559 of the German Civil Code (BGB) cumulatively. The BGH affirmed this irrespective of the order in which the rent increase took place, i.e. first due to the modernisation and then an adjustment to the local comparative rent or vice versa. Only the minimum period of 15 months within the meaning of Section 558 (1) sentence 1 BGB had to be observed, after the expiry of which only a further increase according to Section 559 BGB was possible. This was observed in the present case.

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If you have any questions on this topic, please contact Dr. Andreas Seegers:
@: andreas.seegers@ksp.de
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