Immigrant tenant, German landlord - reflections and English advice

Immigrant tenant, German landlord - reflections and English advice

Many expatriates I encounter end up having a rental law dispute. Rental law is highly regimented and disputes typically boil down to questions of fact (e.g. who caused the mold?) -  where the lawyer relies on the client's information - and to the irrationality of one or both of the two parties, one or both of the lawyers involved and even, sometimes, the judge.

Before I get into some of my own reflections, I would like to share some sound advice for every tenant who is having trouble with the condition of his apartment or with his landlord:

  1. Throughly document everything in a manner that will hold up in court. This means writing down specifics like time, date and place and a brief description of what is happening (e.g. at 3:21 AM, 1 January 2014, apartment 220, located directly above my apartment, a water pipe broke and flooded my living room, as evidenced by the attached photographs). Witnesses should be included if possible; note their names, addresses, dates of birth, telephone numbers and - if possible - copy their identity cards.
  2. Make thorough written protocols of all telephone conversations with the landlord. Ideally let a witness hear the phone call, but inform the landlord that another person is listening before hand, otherwise you could end up in criminal law trouble (§ 201 StGB). More recent decisions have stated that it suffices if the person on the other end of the line is informed that the "telephone is on speaker mode". But since case law is not entirely settled on this point, it is always best to take the safest route and state affirmatively that witnesses are listening. The protocol should include details of the witness as in 1 above. Even better: get the landlord to tell you everything in writing or by e-mail.
  3. Make sure to safely preserve all relevant legal documents and to procure signed receipts for any payments made, especially when it comes to any cash deposit.
  4. Stop being so optimistic, and begin evidence gathering immediately, whenever a problem arises, no matter how small - the situation could spiral out of control and if your landlord suddenly becomes uncooperative, you'll regret it. As a proactive measure, even if you are not currently facing any problems, consider preparing an assessment of your apartment as of today. In theory, you made one when you moved in, but do you know where it is and/or what it contains?  Does your landlord have the only copy?  E-Mail or mail your new protocol to yourself in a sealed, post-marked envelope and be sure to include pictures.  That way if a problem arises later, you have an arguably objective reference point.  Here's to hoping that the envelope will never need to be opened. 
  5. Any legally relevant declarations should be made in writing, signed personally and sent off by registered mail with a return receipt (Einschreiben mit Rückschein). See rule 3.

We'll get back to my own thoughts in a moment. But first, a list:

§ 536 IV BGB: Bei einem Mietverhältnis über Wohnraum ist eine zum Nachteil des Mieters abweichende Vereinbarung unwirksam.
§ 551 IV BGB: Eine zum Nachteil des Mieters abweichende Vereinbarung ist unwirksam.
§ 552 II BGB: Eine Vereinbarung, durch die das Wegnahmerecht ausgeschlossen wird, ist nur wirksam, wenn ein angemessener Ausgleich vorgesehen ist.
§ 553 III BGB: Eine zum Nachteil des Mieters abweichende Vereinbarung ist unwirksam.
§ 554 a III BGB: Eine zum Nachteil des Mieters von Absatz 1 abweichende Vereinbarung ist unwirksam.
§ 555 BGB: Eine Vereinbarung, durch die sich der Vermieter eine Vertragsstrafe vom Mieter versprechen lässt, ist unwirksam.
§ 555 a IV BGB: Eine zum Nachteil des Mieters von Absatz 2 oder 3 abweichende Vereinbarung ist unwirksam.

For those with limited German, the above clauses all refer to different German Civil Code rental law provisions and state that deviating arrangements are invalid (unwirksam)! Please bear in mind that this invalidity does not apply to any private contract in which the tenant and landlord, being on equal footing, negotiated and consented to a set of specific provisions. Of course, such a negotiation is unlikely when an expatriate without German knowledge is involved.

Many rental contracts are published by landlord and tenant associations, or pre-written and intended for multiple use (i.e. for multiple tenants). Thus there is, outside of individually negotiated agreements, little freedom of contract. It would be a blessing to the legal community, and to landlords and tenants, if the government published a standardized rental contract form for residential units which larger-scale landlords (my suggestion would be that this apply to any landlord with more than 6 units) are obligated to use - much like the rescission right for online sales has an official template. The situation right now is one characterized by arbitrary lower court decisions which opportunistically declare specific standard clauses invalid, with case law varying from one county to the next.

In some dense cities, like Hamburg, Munich or Berlin, there is a real power disparity between the landlord and the tenant, so that the tenant requires extra protection. But most cases I have seen wherein the landlord gets what he wants from the tenant involve the landlord shocking and aweing the tenant, who has not yet been informed about his rights. The immigrant tenant, lacking German and legal knowledge, is likely to capitulate instead of resisting.

Much more effective than any legal right to terminate is the overall vulnerability of the tenant in his own home. The landlord is frequently spatially separated from the tenant, but the tenant is exposed at all hours to the landlord's machinations. This has less to do with law and more to do with psychology; I have seen tenants with an unterminated right to live in their apartments simply pack up and leave due to unwillingness to deal with situational stress. That is entirely understandable and also shows why lawyers can only do so much in rental law.

I typically try to settle any rental law case I am presented with because the legal dispute surrounding one's own home is one of the most exhausting imaginable for the client. A settlement is often helped along by obeying the evidence suggestions I described above. A quick resolution where everybody is mildly irritated is a lot better than a long legal dispute where the tenant ultimately ends up frustrated, angry and betrayed by the system. My motto is "tolerate and liquidate", i.e. leave your apartment and, if you still feel like it, sue for damages. Being enmeshed in a court battle over the place where you currently live is not fun.

Luckily, organizations exist that offer legal counsel and representation at low rates, e.g. the Mieterbund (www.mieterbund.de), which charges a tiny annual fee (typically € 36,00) and provides basic protection. They offer German-language resources in plain language. Further, there are many exceptions to the coverage offered by legal insurance (Rechtsversicherung), but for renters it can pay for itself because, in general, rental disputes are covered.  For more information on my thoughts regarding legal insurance, feel free to email me at erik (at) kravets.de. 

To be clear, tenants can be vexatious as well. "Rental nomads" who move in, never pay and devastate the apartment are, sadly, not as uncommon as one might imagine. And tenants who unreasonably pepper their landlords with demands and cut their rent do their part to undermine the trust the system needs to survive, as well. In a utopian world, we would all treat each other fairly and decently and lawyers would only be needed to structure transactions. But until that day, landlord/tenant disputes will no doubt remain a part of my legal practice.

Kontorhausviertel Hamburg: 1920s expressionism at its finest

Artikelrezension: Alexander Morell, Die Rolle von Tatsachen bei der Bestimmung von "Obliegenheiten", AcP 214, 378-424

Artikelrezension: Alexander Morell, Die Rolle von Tatsachen bei der Bestimmung von "Obliegenheiten", AcP 214, 378-424