Defects, rent control, operating costs: methods for the common fight ⋆ Mieter*innengewerkschaft Berlin

Foreword

In view of the everyday rent madness, one question is always on tenants’ minds: How can they take action against it? This brochure brings together a series of instructions that describe how rights can be enforced. The focus here is on methods that are most effective when they are applied collectively rather than individually. So the key point is that the more people join in, the more effective it will be. An organized housing community that acts together forces the landlord to take needs seriously. A cross-household tenant organization that uses the methods in this brochure can become a real nightmare for landlords.

The Mieter*innengewerkschaft Berlin (MGB) invites you to put these methods into practice and offers its support in planning and implementing individual steps.
Feel free to write to us if you need help and want to become part of the MGB. You can use the actions in this brochure to assert your individual rights. Used by a house community or an even larger group, the following methods open up the first steps towards collectively determined living.
So, let’s get organized!!!

Intention

In rent disputes, we use various forms of action to achieve specific goals. Certain forms of action are particularly suitable for certain goals: A demonstration generates public attention and makes our solidarity for one another visible; a referendum is intended to change the legal framework; a letter campaign puts psychological pressure on public officials; a squat provides people directly with housing. These examples are intended to show that our goals are closely linked to the possible forms of action. As the saying goes, “If you have a hammer, everything looks like a nail”, which is an epistemological hurdle: The existing forms of action determine which goals seem achievable to us.

With this collection of texts, we want to take the first steps towards making a new goal tangible: The organized struggle of tenants for concessions from landlords; for a renegotiation of tenancies on an equal footing.
In these texts, we particularly exclude recourse to executive power, which regularly falls into patterns of petitioning and patronage on the other side. Instead, we want to explore forms of action that make use of legal regulations, but above all work on the basis of a broad organization of the tenant community. The change in (rental) conditions should therefore not be fought for through changes to tenancy law, but through collective, but private-law obligations of landlords towards tenants. The specific goals naturally result from the tenants’ concrete and most urgent problems. As examples, we would like to mention just a few typical problems: rent that is too high, a tenancy agreement that allows termination for personal use, or the increasing deterioration of the building.

As long as tenancy law hardly provides for collective legal remedies and even isolates tenants who live in a building together, our approach requires curiosity and perseverance. The forms of action arise when tenants skillfully and in a coordinated manner raise their individual rights to a collective level. For example, although the right to inspect the landlord’s files is provided for by law, it is hardly relevant for most tenants (individually).
The tenants of Kotti&Co, for example, have creatively turned this into an effective means of exerting pressure on their landlord by using it en masse. The basic idea was to use legal leverage to negotiate concessions.
We describe these and other forms of action in sections and provide a summary, the collective action mechanism and a detailed schedule for each form of action.

We have selected the forms of action collected here because they have a very low risk profile for the tenants. None of the forms of action pose a direct threat to the tenancy (although specific legal advice for the tenants may of course always become necessary in the course of a struggle). In terms of organizing theory, they are therefore suitable as structural tests and can be used to check and strengthen the degree of organization before more risky actions. They can form a middle phase in a long-term rent struggle, after networking and before (highly risky) unilateral rent reductions.

Why organize as a house community?

In this brochure, we want to show housing associations a few basic ways of fighting landlords* that are more effective if they are carried out together.
The first step is always to establish this house community! But why is it advantageous to organize as a house community and what does that actually mean?
We are social beings and need contact with others, especially in stressful situations. Together, it is much easier to deal with demands and threats from landlords, because a jointly acting community relieves individual tenants of many tasks and has a huge advantage when it comes to obtaining information. It is not without reason that an organized community lowers the value of a property. It also makes everyday life easier when people in a building get to know each other and start to support each other. Among other things, this means that minor conflicts in the house do not have to be resolved by the landlord or the police.
The following applies to tenancy disputes: House communities offer the opportunity to act as a group. This means that nobody has to be afraid of becoming a target of the landlord alone. You can inform the public together and you don’t all have to seek legal advice individually if you have the same problems.

How can a house community be organized?

We have already created a detailed guide to forming a house community. It also contains a wealth of information on the topic as well as tips on how to approach people in your house, organize initial meetings and build a lasting house community. There are also numerous offers in Berlin that can be used specifically by house communities. It is best to get advice from our experienced AG Organizing at the beginning. The MGB can help, advise and directly support the formation of house communities. The objectives and problem areas should always be set by the house community itself.
Contact us at: kontakt@mg-berlin.org

The first steps

The first thing to do is to start talking to your neighbors. If you only know a few neighbors so far, now is the time to go door-to-door or talk to them on other occasions, such as picking up parcels or in the hallway. This can be an informal conversation to get to know each other, or an exchange that already addresses a specific common or perhaps individually perceived problem with the rental.
If there is no directly apparent common problem, the house community can, for example, take the need for relaxation or informal exchange as an opportunity. A joint summer party in the courtyard or the greening of the courtyard can provide an opportunity for this. The first small groups can easily form through direct exchange and initiate a house meeting.
The concrete advantages of joining forces often become apparent very quickly during an initial exchange in a group of neighbors. For example, you can find out how individual concerns are handled by the landlord or what problems there are in the building. It often turns out that problems that were previously seen as individual do not only affect you.
At the first house community meeting, it is advisable to set up a joint chat group so that you are in contact and can communicate directly within the group. Numerous problems usually become apparent at the first meeting that can be tackled collectively. Whether it’s upcoming viewings, high operating costs, defects, modernization announcements or other issues, most problems can be better tackled in a community of solidarity. Depending on the fighting spirit of the housing community concerned, the following instructions can be used to support demands on the landlord and enforce claims.

Jointly enforcing claims due to defects

Goals

If the apartment has a defect, the landlord must usually remedy it. It is often difficult to claim this alone. Defects that affect everyone in the building can also be claimed jointly. This increases the pressure on landlords. In the case of defects that only affect individual tenants, the other tenants can help – for example, by providing evidence. This can be very expensive for landlords and it is more pleasant and healthier to live without the defects.
In addition to major defects, it also makes sense to consistently complain about supposedly minor issues in order to pressure the landlord to make further concessions as a community.
As every complaint, i.e. a written complaint about a defect, has to be checked and answered, the landlord has to invest staff time in each case. And because tenants only pay their rent conditionally until the matter is resolved, rental income can no longer be fully invested in new business, as money has to be set aside for repayments.
Defects that a landlord fails to rectify over a long period of time despite being reprimanded are generally perceived as scandalous. This means that an early reprimand can be useful in later disputes to attack the letting in PR campaigns and gain public sympathy for the housing association.

Examples

There are various defects that usually affect more than just a single tenant: In the case of moisture damage and mold, several apartments are often affected and it makes sense to measure the moisture level in different places and take mold samples. Noise nuisance from building sites, for example, is often more difficult to prove. In this case, the individual tenants can keep a joint log with a noise meter to prove the nuisance at different times and from different apartments.
If the landlord generally delays repairs and this results in defects in the apartment and, for example, leaking windows, it may be worth hiring tradespeople together to have a cost estimate to hand.

Instructions

Inventory

As a first step, the respective defects in the affected apartments should be recorded in a joint inventory. The building community can draw up protocols, take photos and note the history.

Notification – setting a deadline – asserting rights

Defects must be reported to the landlord.
The building community should decide in what form it wishes to submit the notice(s) of defects. The notice of defects can either be sent in a joint letter or in several individual letters at the same time. Several letters at the same time may make a greater impression on the landlord/landlady. On the other hand, individual tenants may be reluctant to expose themselves by sending their own letter. It must therefore be decided on a case-by-case basis. In any case, the degree of organization of the building community will be visible to the landlord.
The notification should be made in writing (for delivery below). A deadline of 2 weeks should be set for the repair and a note should be made that the rent will be reduced by a certain amount until the defect has been rectified and that the full amount will only be paid “subject to reservation”. (See below: conditional payment) The amount of the reduction can be found in rent reduction tables. The reduction is based on a percentage of the total rent including all ancillary costs (gross rent).
However, the following applies: although the rent is reduced, it must continue to be paid in full in any case. If it later transpires that the rent reduction was incorrect, at least in terms of the amount, there is a risk of termination due to the unpaid rent.

Conditional payment

The declaration of reservation means that amounts paid can be reclaimed at a later date. This ensures that no payment arrears arise and that parts of the rent paid can be reclaimed at a later date. It is advisable to inform the landlord why payment is being made subject to reservation – for example, in the event of a reduction in rent. For better proof, it is also advisable to add the words “subject to reservation” to the purpose of the rent payment. In the case of SEPA direct debits, it should be stated that the collection is subject to reservation.
The letter of complaint should ideally be posted by messenger; the building community can also bring the letters to the landlord collectively (for delivery see below). Otherwise, the letter should be sent by registered mail and also by e-mail.
Next, wait for the deadline. In the best case, tradespeople will come by. It can be useful to have witnesses with you so that it is not later claimed that the defect was caused by the tenants themselves, for example. Repairs commissioned by the landlord must generally be accepted by the tenants. It should be noted how much time the tenant has to spend on appointments with the tradesmen.
If the defects are not rectified, there are several options: In the case of blatant defects that are a burden on your life, a complaint should be filed quickly. If the conditions make healthy living impossible, a temporary injunction can also be considered. Sometimes it can also be worth getting the housing inspectorate involved.
You will also have to take legal action if you want to get some of the rent back. In the case of minor defects, you should decide as a community whether it makes sense to take legal action. In any case, you should report the defects to make the irresponsibility of your rental visible to the public.

Lawsuit

The last resort is often legal action. Although the building community cannot take this route together immediately, this does not mean that cooperation ends here. First of all, the tenants should discuss who should take legal action. Because often not all tenants have the same level of legal expenses insurance, the better insured tenants can sue first. This may mean that a common defect is already remedied or a precedent is set for the rest of the building community.
If you agree on who is suing, talk to each other, also to support your lawyers. The residents can support each other as witnesses.

Enforcing the rent freeze

What is the rent freeze?

The rent freeze can make it possible to reduce the net cold rent in an existing rental agreement. Landlords are only allowed to charge 10% more than the local comparative rent for new tenancies in Berlin. In some cases, they invoke exceptions to this rule. Here, the housing association can both help to determine the permissible rent level and contribute to the rent actually being reduced. It is also possible to work together when writing the complaint and delivering it.
The landlord must respond to the complaint and provide information. This effort reduces profits and ties up staff. Money has to be set aside for possible repayments, reducing liquidity for new business. In addition to the immediate effects, there are the refunds if the complaint is successful. The pressure increases the more tenants participate.
If the complaint is successful, the tenants receive a refund of any rent paid in excess and also pay less in future. As subsequent rents must in turn be based on the current rent, future rent increases are also limited.
The purchase price of a rental property is calculated primarily on the basis of the net cold rent. If the building community successfully reduces its rent, this reduces the value of the house. This makes it easier for the housing association to transfer their house from private ownership to municipal or cooperative management by purchase or expropriation.

Fundamentals

The rent freeze applies to all types of housing except for so-called social housing and newly built apartments that were first used and rented out from October 1, 2014. It applies to all rental agreements concluded after the relevant regional ordinance came into force: In Berlin, the relevant cut-off date is June 1, 2015.
Furnished accommodation is also subject to the Rent Control, but landlords can charge a surcharge on the rent. This must be calculated correctly and tenants are entitled to a statement of this calculation.
Graduated rents – i.e. a rent increase in the rental agreement, for example every year – are also subject to the rent freeze, meaning that each graduated rent is capped at 10% above the current local rent. However, it is necessary for the tenant to give notice of a breach of the rent freeze again after each scale has come into effect. The rent level of a previous rent scale that has not been reprimanded remains unchanged.
In the case of the index-linked rent, only the first agreed rent is subject to the Rent Control. The index-linked rent is a rental agreement under which an increase is triggered by the rise in consumer prices according to the consumer price index.
For these special forms of rent, it is advisable to seek legal advice.

Enforcement guidance

Determining the permissible net cold rent – this is how the rent control is checked:

The net cold rent – sometimes also referred to as the basic rent – is the rent without the share of operating costs. According to the rent freeze, a rent 10% above the so-called local comparative rent is permitted. This comparative rent can be calculated using a rent index.
Tenancies established before 1.9.2014 are not subject to the rent freeze. A simple tool for determining the comparative rent is the Senate Administration’s online questionnaire. Caution: This only contains the rent according to the rent index 2021. If the rental agreement is older, you must make your own calculations using the older rent index, which can also be found on the Internet, in the respective rent index field applicable there; a different residential area may have applied at that time (→ check the street directory!).
Another option is to fill out the Berlin Tenants’ Association’s questionnaire.
To do this, you need to check the street register for the rent index to see which residential area is available and whether the address is marked with an (*). In this case, it is a particularly noisy address (feature group 5).
The result is the local comparative rent. This is also important, for example, for rent increases based on the comparative rent (Section 558 BGB).

→ The result + 10 % corresponds to the permissible rent. If the rent agreed in the tenancy agreement is higher than this, a rent cap may apply.

Completion instructions for questionnaires / online tools

The following applies to the online questionnaire of the Berlin Senate Administration:

First page: Enter
address with house number.

Second page:
When was the house built? Is the age of the house unknown? Then it may help to ask the neighbors. (The age of the building should be listed in the rent freeze information letters. Sometimes this information is listed in tenancy agreements or other letters from the landlord. In an emergency, the building files must be inspected. This can be done by contacting the building file archive of the district office. There is also the option of writing to the landlord/landlady asking for information. However, it will then become clear that the tenant’s rent level may be checked. However, this information is also necessary for housing benefit applications, etc.)
Is it an attic apartment? Then it depends on the readiness for occupancy of the specific apartment.
The size of the apartment is often stated in the rental agreement. Please enter the exact size here. If no size is stated, the size must first be determined. It may also be advisable to check the size stated for square meters.

Third page:
Does the apartment have an indoor WC or bathroom and collective heating? Please note: Gas floor heating systems are collective heating systems (as well as central heating systems and district heating systems). Click on the applicable blue numbers.

Fourth page:
This is about the exact apartment furnishings. There are several features that are the same for all apartments in the building. The building community can help here. Collective preparatory work can be done on the following points in particular:
Feature groups 4. building and 5. living environment are mostly the same, except for the cellar, when possibly not all tenants have one. A modern heating system can also vary from apartment to apartment.
Information can be collected collectively here. A photo documentation of the condition of the house (stairwell, damp cellar, poor facade insulation, overcrowded bicycle racks, poor condition of the courtyard, etc.) can already be created. The energy certificate can also be found together or the energy status can be calculated using a utility bill and the tenants’ association’s online tool. The energy status is identical for all apartments in the building.

Problems filling out the form?

Some of the housing-related characteristics are difficult to assess. If in doubt, simply check the box after making an estimate. If a little more is stated than is actually the case, this is not a bad thing, but it should not be completely unrealistic and the exact amount of rent will only be determined by a court in the event of a dispute. It may then turn out to be higher than the rent stated in the complaint.
The Berlin Tenants’ Association has some useful assessments. Also useful is the collection of judgments on the rent index 2021 including foreword, published by the Senate Administration (berlin.de).

If the rent amount + 10 % exceeds the permissible rent, a complaint should be sent to
. Why?
The landlord must be informed that the rent is being reprimanded. The initial consequence of this is that the excessively high rent is put on the agenda. In the case of tenancies concluded before March 31, 2020, the possibility of reclaiming the rent since the complaint was made only begins with the complaint (from the following month). No “conditional payment” is required for the reclaim under the rent freeze.
Once the complaint has been drafted, it should be served in a verifiable manner. See also the tips on service below.

Special feature of gross rent:
It may be the case that ancillary costs and heating costs are not specified separately in the tenancy agreement, but are included as a lump sum in the total rent. This is called gross rent. In this case, a so-called notional operating cost share must be deducted from the contractual rent in order to determine the net cold rent share. This can be calculated using the Berliner Betriebskostenspiegel. The lower value of the average costs should be used (i.e. for ancillary costs and heating, the lower average values are multiplied by the size (sqm) of the apartment).

Exceptions to the rent freeze

New construction: If the building is ready for occupancy after October 1, 2014, the rent freeze does not apply.

High previous rent:
Landlords often claim that the tenant had previously paid the same amount. This is possible, but if the rent was already too high beforehand, this is not a valid pre-rent. If the landlord refers to the previous rent, this should be checked more closely. It is problematic if the very high previous rent dates from a time before June 1, 2015 (when the rent freeze came into effect in Berlin), in which case it is often a valid previous rent. But this is rather rare. In any case, you should ask who previously lived in the apartment: It may be possible to find out how high the rent was; perhaps the previous tenant can also testify to the lower rent. If the names are known, you can ask the residents’ registration office for the current address of the previous tenants. (The landlord is generally obliged to provide evidence, but this carries a litigation risk).

Extensive renovation: The rent cap does not apply if an apartment has been extensively modernized before it is rented out again. However, this only applies if the cost is (at least) a third of the financial outlay required for a comparable new-build apartment – excluding the land portion – (approx. €500.00/sqm). The landlord must first prove this, which is usually not possible. In addition, the apartment must be of new-build standard as a result of the measures taken. This is rarely the case in renovated old buildings.
This is where the household community can make the difference. It can be found out: What happened after the previous tenants moved out. What did the apartment look like before? What was merely maintenance (the costs are not included) and what was really modernization (e.g. coal heating replaced by gas heating)? These questions can be answered through the neighbors’ contacts with the former tenants and, if necessary, information from the landlords can be checked.

If it is not a comprehensive modernization: If it is not a comprehensive modernization: Individual modernization measures can lead to an increase in the local comparative rent. The costs of the modernization can be determined on the basis of the condition of the apartment before the modernization in order to determine the extent to which a surcharge for the modernization is permissible. If you have any questions, you should seek advice.

In case of doubt: If the landlord invokes exceptions, if there are problems calculating the permissible rent level or if it is not clear whether the rent freeze is applicable at all, it makes sense to seek advice from a lawyer or tenants’ organization. If you do not have the financial means, you can apply for a counseling aid certificate from the local court. An initial consultation with a lawyer then only costs €15.
There are also free open consultations, for example via the district offices in the neighbourhood and those that specialize in collective issues. A continuously updated list with a selection of open consultations can be found on this page under Consultations.

Enforcement after the complaint
If the landlord does not respond to the complaint or wants to apply an exception, the only option is legal proceedings. However, this should not be done without a lawyer.
Since April 1, 2020, the legal situation has changed: a complaint can now also be made for the past 30 months. Landlords are obliged to provide information about the existence of exceptions (previous tenancy, modernization) at the latest when the tenancy agreement is concluded. If they fail to do so, they may no longer invoke these exceptions two years after providing this information. This does not apply to tenancy agreements that have already been terminated.

Legal protection insurance
Members of tenants’ organizations should go to the advice centres with their tenancy agreement, a statement of operating costs and a completed questionnaire to find out exactly what legal protection they have. With the usual tenants’ organizations, legal protection only begins with several months of membership. When joining the Berlin Tenants’ Association, for example, it is therefore advisable to wait three months until the complaint is sent.
Legal expenses insurance can also cover the legal cost risks of the rent freeze. However, insurance companies usually only do this if the insurance cover was already in place at the time the tenancy agreement was signed.

Delivery of the complaint
As above, important letters are best delivered by messenger so that someone can witness the delivery later. It must be a person who is not in the tenancy agreement and it is good if they know what the letter says. They can hand in the letter to the landlord. It is also possible for the landlord to confirm receipt on a copy when you hand it in personally.
The posting can also be done as a flash mob, in which case the tenants act as witnesses for each other. If the rental is not in the same city, you should at least use a registered letter and ideally also an email.

Collective inspection of files on operating costs

Every year, tenants receive a utility bill that reconciles the warm rent paid in the previous year with the actual costs for water, heating and other expenses. If they have paid too much, the tenants receive a refund; if they have paid too little, the landlord/landlady demands an additional payment. The utility bill usually breaks down all costs; however, tenants also have the right to see the contracts and receipts relating to these costs, i.e. the right to inspect the landlord’s files.
After the tenants request access to the files, they are invited to the property management company to read the files on site. The property management company has to schedule an appointment for this, it has to compile the files and it has to assign employees to supervise the tenants during the inspection. All of this costs the property management company time, which it charges to the landlord. The more tenants participate, the more money it costs to inspect the files. If the tenants are also required to pay operating costs in arrears and request access to the files, they can withhold the additional payment until the inspection date. In the meantime, the landlord lacks liquidity for further transactions.
If tenants discover unfair business practices, such as overpriced invoices from subsidiaries or similar grievances, the housing association can use these findings to take public action (press, social media, etc.) against the landlord/landlady. For these reasons, in addition to checking and correcting costs, access to the files is also an effective means of exerting pressure to enforce claims formulated by the housing association.
If the community’s objection was justified, the operating costs must be reduced and the operating cost statement must be corrected. The additional payment may be reduced or a credit note may be issued.

Inspection of files: step by step

As a rule, all tenants of a building receive the operating cost statement (BKA) on the same day. The first thing you should do is make a note of the delivery date, as the statement of operating costs for the previous year usually has to reach you by December 31. As a rule, you must then claim the right to inspect receipts within four weeks. To discuss which receipts should be inspected, it makes sense to hold a meeting with all tenants. You should check the items that have become more expensive by inspecting the files.

Sample letter for inspection of operating costs (PDF Download)

As many of you as possible should then use this sample letter to request access to receipts. You can then withhold the additional payment for the time being.
It is best to use a joint letterhead (corporate identity) for the sample letter to show that you are coordinating.
In the first year, all receipts (invoices, meter reading receipts, measurements and especially contracts) should be viewed and photographed if possible. This way you can create a house folder and save time and work in the following years.

If you do not receive a response, send the following reminder: Reminder letter for inspection of operating costs (PDF Download)

If the landlord has confirmed an appointment to inspect the receipts, neighbors who do not have the time/do not wish to do so can authorize other neighbors to inspect the receipts on their behalf. It is clear that the more tenants inspect the receipts individually, the more frustrated the landlord becomes.
All receipts can then be photographed at the appointment. (There are judgments that tenants are allowed to make copies with their own technology and that employment contracts with janitors or similar may also be copied, for example Munich Local Court: AZ: 412 C 34593/08). If the landlord does not offer an appointment, you can demand to see the documents by taking legal action in court.

Evaluate and check
Once the documents have been copied, they are evaluated. The first step here is to compare the invoice amounts with the values specified in the BKA. Pay attention to the following:
Have all operating cost items really been agreed in the rental agreement? (Particularly in the case of other operating costs: gutter cleaning, maintenance of the SHEV system, …) Only costs whose allocation has been agreed in the tenancy agreement may be allocated. However, a reference to the Operating Costs Ordinance (predecessor regulation: II. Calculation Ordinance) is sufficient.
In the case of a mere reference, however, the other operating costs are not included and can therefore be rejected.
In the case of particularly high costs or an increase in costs compared to the previous year (especially service contracts) with average values (every rent index contains an overview of operating costs), you should compare and, if necessary, obtain alternative bids (economic efficiency requirement).
The Berlin Tenants’ Association and the Berlin Tenants’ Association offer members contact with people who will inspect the receipts and prepare an evaluation for a relatively low fee.

Letter of objection(sample from the Berlin Tenants’ Association)
→ according to the results from point 5
– Which operating costs have not been agreed?
– Which costs do not match the invoice amounts?
– Where are costs that cannot be apportioned (e.g. janitor services that are part of maintenance or administration, garden maintenance work that has not taken place)?
– Are there operating costs incurred due to construction work (e.g. construction electricity and construction water, the consumption of which was not recorded separately and eliminated)?
– Where are cost increases that are inexplicable?
– Are there services that are offered more cheaply on the market?
If the landlord does not withdraw the additional claim, you absolutely need individual legal advice. This is because you may not continue to withhold the additional payment after you have inspected the receipts. Otherwise, the landlord could possibly give you notice. You can also only achieve a higher credit balance than in the landlord’s statement of operating costs by taking legal action
.

Potential for particularly combative housing communities
: It may also be possible to view financial data (rental income) when comparing insurance offers, although this has not yet been tested.

Archiving all files
Conflicts over operating costs often drag on for several years. In the meantime, individuals may move out or move in again. A joint archive makes it easier to keep track of everything and to be able to document grievances over longer periods of time.

Further material on file inspection is available from the Berlin Tenants’ Association.

Defects, rent control, operating costs: methods for the common fight