Legalities when Renting an Apartment: Closing Contract, During Renting

Once you have arrived in Germany, you will need a place to live. No question. When you rent an apartment, you will need to know a lot of rules. Keep reading and you will get them.


What is the legal commission for a rental agent?

The commission for an agent may be a fraction or a multiple of the net rent to be paid – up to a maximum of two months’ rent excluding costs for housing operation, plus VAT (§3 WoVermittG). The prerequisite for this commission is that the broker acts as an independent broker (§2 II WoVermittG). If the person you are dealing with is the property manager, or a shareholder in the company owning the apartment, then in these and in similar cases, he is not allowed to collect a commission. If you are not sure if you found an independent broker but you just found your dream apartment, then pay the commission fee with reservations (“unter Vorbehalt”). Then consult an attorney and let him check it out for you. This supplement is very important to ensure you the right to recover your payment – otherwise it will be forfeited. When paying by check, write “unter Vorbehalt” on the check and copy it for your records (make sure it is a legible copy!), and when paying by bank transfer put these words in the field “Verwendungszweck”. Following my suggestion may mean that you may first have to pay more than actually allowed but that way you will secure your beloved apartment! The overpayment will have to be collected with the help of an attorney and maybe even in court as the broker will most likely not voluntarily want to refund his commission.

My rental agent is demanding an advance. Is that legal?

If you encounter a broker demanding an advance, do not hire and especially do not pay him! It is illegal for him to take advances (§2 IV WoVermittG). If you have paid him, your money will be refundable according to the principles of unjust enrichment (§812 BGB) – unless he found you what you were looking for.

My landlord is demanding a security deposit for the apartment amounting to six months of rental payments. Is this lawful?

Absolutely not! The landlord may demand a maximum deposit equaling three months’ rent of net rental payment (§551 BGB). Moreover, you have the right to pay this deposit in three installments, with the first one due at the signing of the contract. Be aware that your landlord is obligated to keep this money separated from his own assets and the deposit can be put into a savings account on which interest is paid. This interest will be around 2% p.a. When you vacate your apartment, you will receive the deposit back with interest – if the apartment is in good shape. You and your landlord can also agree on using a different investment program for your deposit, or you might supply him with a bank guarantee. In any case, all revolved interest increases the deposit.

My landlord just gave me a contract form in which I stumbled over sliding rental pay­ments? As I never heard of this practice, I suppose it might be unlawful.

Well, it is lawful (§557a BGB). But such gliding provisions may only be stipulated for up to ten years during which other increases in rent are prohibited. The rent must not be changed for at least one year. This provision does not apply to dormitories or apartments for temporary use (e.g. vacation apartments). Landlords favor it because it makes increases in rent very easy – avoiding costly proceedings in court. The advantage for the tenant is that he will not be surprised by raises in rent and knows exactly what his apartment will cost over the next few years. This can also become a disadvantage, causing a high rent when the economy is poor and equivalent rents are declining. If you get into such a situation, talk with your landlord. Maybe he will be inclined to drop the rent to keep you from moving. However, be aware that you have no right to demand that he lower the rent. You signed a contract. That contract binds both parties alike. 

Since I am living in Germany, I have a strong and irrational feeling of being uninformed. I especially miss the news on TV from my home country. Programs in my mother tongue are not on cable TV and only receivable over satellite. After having bought a “salad bowl,” as the Germans colloquially call satellite dishes, I wanted to attach it to the roof but my landlord forbids me to do so. He says that cable TV is installed and satisfactory. Is that legal?

Your landlord’s opinion is wrong. You have the fundamental right to inform yourself from the sources you prefer (Art. 2 GG). This exception is exclusively valid for non-Germans. In this particular case only, your interests override the landlord’s interests in the integrity of his house. Nevertheless, there are some requirements to be met for installing a satellite antenna. N.B. Germans are absolutely bound by the landlord’s disapproval. These requirements are:

  • The dish must not substantially interfere with the building.
  • Cable TV must lack suitable programs.
  • The landlord cannot be held liable for any costs.
  • The renter covers the risk of any damages caused by the dish, for example, if it falls on a pedestrian.
  • Upon demand of the landlord, you are to provide him a security deposit for the estimated costs of removal. This is an extra security deposit.
What you just mentioned about the satellite dish was very interesting. Does that also count for me? I am of foreign heritage, born in Germany, having been naturalized in the meantime, and I am married to a German. It is very important for me to raise my children as much as possible in the tradition and customs of my origin.

You do not qualify as a “true foreigner”. You are already much too much “Germanized.” To raise your children in the traditions of your origin, you will have to find other means.

I am living in a new building. The landlord had the most modern appliances like broadband cable for TV and radio installed. On the standard available programs, I don’t receive anything from home. My landlord suggested that I buy, at my own expense, a decoder that I would receive five programs from home on cable. The idea is not bad, however I still generally disagree. I want to have a parabola antenna installed.

In the above shown case, the federal constitution court BVerfG (re 1 BvR 1953/00) ruled that the landlord has the right to forbid you to install an extra antenna on your balcony or the roof because his interests on an intact building value higher that the tenant’s interests on keeping in touch with his home culture. You have enough possibilities to inform yourself by cable TV. You do not need such preference. So what to do if you do not want to buy a decoder? Sell your TV set! That is the only useful thing you can do in this gridlock. If you sell your TV, do not forget to unregister your TV from GEZ and keep the receipt as a proof!  

My spouse left me. Not only that, she also gave notice on the apartment. We are both parties to the contract. She told the landlord that I also have to leave but I do not want to.

Actually, you both have to give notice on the apartment because you both are parties of the contract. If a party to a contract consists of more than one person, then these persons are expected to express a joint opinion. If they fail to do so, then the expressed opinion will have to be reinterpreted. The reinterpretation in this case is that your spouse wants to be exempted from the contract. This will become troublesome if your landlord denies your spouse’s wish. He is not at all obligated to do so. On the contrary, he might even have an interest in having two persons instead of just one owing him the rent.

Wait just a second. After finding a copy of the contract, I noticed that only my wife signed it. Do I have to leave?

If you cannot take over the contract, then you must leave. To take over the contract is a matter of negotiating with your landlord. It is quite likely that it will work. If any arrears exist, then you will be expected to take them over, too. To have them refunded, if possible, will be your problem. Remember too, that the landlord has an interest in keeping his apartment rented. 

The water faucet in the kitchen broke. I called the landlord and asked him to repair it. He just referred to the “Small Repair Clause” and refused to take any action. What does this clause mean?

It means that the responsibility for small repairs has been turned back over to you. Usually, your landlord must keep not only the building but also the apartment in shape (§535 I 1 BGB). Repairs are considered small when they cost € 50 at most. Such a clause is not uncommon and is valid if two conditions are met:

  • This provision must not include things that the renter has no frequent contact with. Typical things to repair are dripping water taps, renewal of old faucets.
  • This provision must include a maximum amount to be paid during a certain period.
The person now in the apartment I want to move into is asking for an “Abstand” for several pieces of furniture I do not want. Looking up “Abstand in my dictionary, I found out it means “distance”. What kind of distance is he referring to?

You have totally misunderstood him! He is not talking of any measurements in length but of an indemnification payment for leaving his furniture. He wants to give (or already gave) notice to the landlord. Now he wants to leave the apartment ahead of time and does not want to pay for two apartments. He is supposed to leave the apartment empty and he is trying to sell that furniture to you so that he himself does not have to take care of it. You are not at all obligated to buy. The outgoing tenant has to return the apartment empty to the landlord. The landlord does not have to take over the furniture if he only wants to rent empty apartments. Typically, built-in, tailored kitchens are an object of Abstand. In such a case, consider if the kitchen might be of use to you. Above all, note that if you decline to pay the Abstand, the current resident will try to find someone else to take over the apartment!.

Having found an apartment, I promised to buy the remaining furniture. Now the landlord has informed me that I will not get the apartment. Do I still have to buy the furniture?

No. You just had a spot of good luck. To state the law: first, you are bound by a contract to buy that furniture (because you promised to). However, §4a II WoVermittG takes precedence. Therefore, in most cases, you will not be forced to buy. The outgoing tenant may go to court to force you to pay him that Abstand even though you did not get the apartment. However, he will have to prove that the sale was independent of the renting of the apartment, which will not be easy. In other words, agreeing on an Abstand will be valid only if you get to rent the apartment. §§

My landlord insists that I purchase a household insurance (Hausratsversicherung), but I do not want any further expenses. Can my landlord require this?

No, he cannot demand that you have household insurance. However, the consequence will be that you will not get the apartment. What the landlord is demanding is actually useful to you. This insurance will pay for damages to the things you put in the apartment. Depending on the amount of protection, it will only cost you a few hundred Euros a year.    

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