- FAQ rent cap overturned: what to do?
- What does the ruling mean for recipients of Hartz IV, basic income support, housing benefit, child allowance and for low-income earners?
- Contact points for legal advice
- PM on the ruling of the Federal Constitutional Court (german)
1. FAQ rent cap overturned – what to do?
What exactly did the Constitutional Court decide?
The rent cap has been overturned. For 1.5 million households in Berlin, this means that rents can now rise as before and that rent reductions due to the rent cap will be reversed. It was not overturned because the law is not compatible with the constitution, but because of its form: according to the Karlsruhe court ruling, the state level (Berlin) is not allowed to make this decision, only the federal level is. Lawyers from the Republican Lawyers’ Association (RAV) consider this assessment to be politically and legally wrong.
What does this mean for me?
First of all, your landlord/landlady can now raise the rent to the level before the rent cap. However, it is always necessary to clarify how exactly this is permissible – preferably collectively with other tenants in an open consultation. The rent is based on the “local” comparative rent, i.e. on the instrument of the local rent index. This applies to all tenancies. Furthermore, in many cases an additional “back payment” is due. In the case of graduated tenancy agreements, the original provisions apply again – i.e. the provisions that applied before the rent cap take effect
My rent was reduced – what do I have to pay back and by when?
Legally, you have to pay back the difference between the old rent and the lowered rent immediately, but probably (but not legally certain) within two weeks from the ruling. This has to happen even without a request from the landlord/landlady. It’s best to check your account or your bank statements to find out how much the difference has been over the last few months if you’re not sure. Vonovia and Heimstaden have already backed down and will not demand these payments, nor will the public housing companies like Gewobag, Stadt und Land and Degewo. Now it’s up to all of us to enforce this with the other owners. Fight with us to demand not one cent of back payment!
I don’t have the money or don’t see why the owner of my flat should get it. What should I do?
Legally, there is little room for action. Therefore, it is up to all of us to exert pressure to prevent these “back payments”. Contact your landlord/landlady, preferably together with the other tenants of your house. It is important that there is written proof of everything, save emails and letters. Especially with the bigger housing companies here are networks you can contact to take joint action: Deutsche Wohnen, Akelius, Heimstaden, Padovicz. With smaller housing companies or landlords/landladies, but also in general, it is important to talk to your neighbours! It takes some effort but it’s worth it. 80% of the residents of this city are affected. Together we have enormous strength. So, talk to your neighbours, have a house meeting and join forces. You can find tips and tricks here.
I rented a new flat during the rent cap – do I have to pay more rent now?
If your landlord/landlady has not issued a “shadow tenancy” agreement – i.e. an agreement according to which you have to pay something back in case the rent caup is overturned – your rent will remain as it is for the time being. Shadow tenancy agreements have to be decided on a case-by-case basis – but often they are not legally admissible! In this case we recommend legal advice from the Berliner Mieterverein, the Mietergemeinschaft or open legal advice.
3) What does the ruling mean for recipients of Hartz IV, basic income support, housing benefit, child allowance and for low-income earners??
There are deadlines to be met, take action now! The constitutional court (Bundesverfassungsgericht, BVerfG) has overturned the Berlin rent cap on the initiative of 284 members of parliament from the CDU/CSU and FDP in an action for a review of the law. The housing property owners are happy, the political parties of the politicians who put forth the complain can count on large donations, and around 1.5 million tenants in Berlin will have to pay back a lot of money. The BVerfG has declared the rent cap law null and void, which means that Berlin tenants will have to repay their contractually agreed rents retroactively, i.e. they will have to pay back rent. This obligation to repay arises on the day of the ruling, i.e. from 15 April 2021, but at the latest from the day on which landlords claim payment from their tenants. Millions of Berliners will now receive additional claims.
If these additional payments, in some cases amounting to several thousand euros, cannot be made, the Jobcenter/Social Welfare Office (Sozialamt) is entitled to take over the payment. This affects low-income earners and benefit recipients. But it also affects people who receive child allowance or housing benefit.
It is important to note, however, that the applications of people who have not received any benefits to date and of those receiving social assistance must be submitted to the Jobcenter/Sozialamt in April 2021, as the back payment obligation has arisen as a result of the BVerfG ruling, as mentioned above. At the latest, however, in the month in which the person or company renting out the flat claims the back payment. Anyone who applies for the takeover later on has no claim to it, at best has a claim on a loan basis. Deadlines must be observed here, take action now! Thanks to Tacheles e.V. from Wuppertal for the summary of the consequences of the ruling on the rent cap by the BVerfG: https://tacheles-sozialhilfe.de/startseite/aktuelles/d/n/2771/
3. Contact points for legal advice
Tenants advice (open, non membershi required)
- Iniforum legal advice https://iniforum-berlin.de/services/digitale-mietrechtsberatung/
register via firstname.lastname@example.org with short description of the issue
Monday/thursday weekly RAV Anwältx Henrik Solf/Carola Handwerg
- Kiezladen Dunckerstr. 14, 10437 Berlin, tuesday 18 – 19 pm (no previous registration neded)
- open legal advice session mo 15-18:00: RAV Anwältx für Schöneberg, Friedenau, Marienfeld, Lichtenrade
Registering for a meeting happens bevore via phone during the tenants advice or via mail to email@example.com
- Free legal advice: Miet- und Sozial-Beratung der Friedel im Exil:
every second and fourth monday of the month from 7-6 pm in the social centre in Sonnenallee 154
- Free district legal advice in neighbourbood office (Stadtteilbüro) Rütlistr. 1-3, 1st floor
tuesday 17 – 19:00, Friday 16 – 18:00 legal advice sessions
register for a meeting by calling 030 – 29 34 31 0
or via mail info (at) asum-berlin.de
- Phone advice sessions for germanwide issues Sozialberatung Tacheles Wuppertal
thursdays 14 – 17:00, 0202 – 31 84 41
- Form for tenancy help(Sicher-Wohnen-Hilfe) and FAQ: https://mietendeckel.berlin.de/
- legal advice per districts: https://www.stadtentwicklung.berlin.de/wohnen/mieterberatungen.shtml