In house modernizations, tenants can defend themselves due to financial overload against rent increases. This is clear from a decision of the Federal Court of Justice (BGH). The landlord can not counter a tenant in principle that a smaller apartment is appropriate for him. However, the courts must conduct a comprehensive case-by-case examination.
If the modernization measures were necessary due to damage or if the usual standard of living was established, the renter can not object and must pay the surcharge. The BGH has decided that.
The question of whether the size of the dwelling is appropriate plays a role in balancing the interests, but all the circumstances of the individual case must be taken into account. It depends, for example, on the rootedness of the tenant in the apartment or his health.
Tenant lives in the apartment for almost 60 years
Modernization costs may be up to a certain limit on thebe pitched. The law, however, protects tenants who make such an increase so hard that it can not be justified even if the legitimate interests of the landlord are taken into account.
OneRecipient from Berlin, who lives in a nearly 86 square meter apartment, has rightly relied on this hardness after the decision of the BGH. The man had moved in 1962 as a five-year-old with his parents in the apartment.
Since the death of his parents he lives there alone. He receives Hartz IV with a rental share of 463.10 euros. Lastly, the rent for the apartment was 574.34 euros plus heating advance.
240 Euro modernization surcharge
In 2016, the landlord dammed the facade and the upper storey ceiling, enlarged the balconies and put the disused elevator back in motion. 240 euros, the modernization surcharge should make monthly. The tenant relied on the law, according to which the rent increase is excluded, if it would mean for him a disproportionate hardship.
Against this, the landlady objected that he could not rely on it, because the apartment according to the specifications of the job center with 86 square meters for single Hartz IV recipients anyway much too large.
This objection was not upheld by the BGH. The Hartz IV regulations are about capping the public housing costs. The hardship clause, on the other hand, deals with the question of whether a tenant, who himself has no influence on modernization, may retain his previous center of life.
Regional court gave tenants right
Not only the landlord, but also the tenant could rely on the protection of property anchored in the Basic Law, the BGH emphasized. Therefore, the interests of both sides must always be weighed in individual cases.
However, the law also states that the lessee can not object if the leased property has merely been placed in a condition that is generally customary. Supplements must also be accepted if the modernization measures are prescribed.
The district court Berlin had given the tenant mostly right. The enlargement of the balconies was not general standard, the facade insulation also not mandatory. Only for the insulation of the upper storey ceiling, the tenant should pay 4.16 euros per month in addition.
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The Federal Supreme Court overturned this judgment because the balance between the interests of the lessee and the landlord shows legal errors. So had not been determined whether the balcony extension complies with the usual standard. The Berlin court had only referred to the Mietspiegel, the balcony size but no statements.
Also with regard to the facade insulation must be checked whether due to damage the plaster had to be completely renewed and therefore an insulation was prescribed. In this case, the tenant could not object to the modernization surcharges.
However, the landlord could not refer the long-term tenant to a smaller apartment, because he had been there for a long time his center of life, said the BGH.
(File reference: VIII ZR 21/19)