Your landlord wants to get around the rent brake? You can fight back.

The rent brake does not apply to commercial premises. That is why some landlords add, without being asked and tucked away in a side clause, that one room may also be used commercially. Many tenants miss it or underestimate what it means.

If there is a dispute, the landlord then claims the flat is used commercially. If the tenant can credibly show that they do not run a business from the flat and never intended to, this argument can usually be refuted easily.

The resultSettlement in the tenants’ favour: rent reduced from 1,058 euros to 888.46 euros.Local Court Tempelhof-Kreuzberg, case no. 23 C 235/18

Check your lease for wording about commercial use. If you simply live there, the rent brake usually still applies.

Private landlords in particular believe that furnished flats are not covered by the rent brake. That is not true. Landlords may only add a reasonable furnishing surcharge. Courts base this on the current value of the furniture; in Berlin, around 2 percent of that value per month is often applied. Many landlords charge far more and do not justify the surcharge.

In one case in Berlin-Neukölln, the landlord even relied on a high furnishing surcharge although the lease stated that the tenants would not use the furniture at all.

Planned: Under the government’s draft reform, the surcharge would be capped at 1 percent of the furniture’s current value per month and would have to be disclosed before the lease is signed. For fully furnished flats, a surcharge of up to 10 percent of the net cold rent would count as reasonable. The law has not been passed yet.

The resultSettlement: rent reduced from 800 euros to 600 euros.Local Court Neukölln, case no. 2 C 187/18

Ask for a list of the furniture and its value. A flat-rate or unexplained surcharge is a warning sign.

A common misconception: fixed-term leases are not automatically exempt from the rent brake. It applies to them too. The only exception is housing let for temporary use (vorübergehender Gebrauch), for example for a short project or an internship.

Some landlords rely on exactly this, even though the tenants want to live there long term. Where the line is drawn has not been set by law so far. Courts decide case by case and tend towards about six months.

On top of that, a fixed term needs a reason recognised by law, such as the landlord needing the flat later for themselves. If you are given one fixed-term lease after another, the reason is often just a pretext.

Planned: The exception for temporary use would in principle only apply to tenancies of up to six months, extendable to a maximum of eight months. The law has not been passed yet.

Have you lived in the flat for more than a few months, or has your lease been extended several times? Then a check is almost always worth it.

With this trick, tenants first sign a normal lease, often at the upper end of what is allowed. Straight afterwards, sometimes on the same day, they sign a side agreement that adds several hundred euros to the rent. The usual justification is modernisation work that has not even been carried out yet.

The Berlin Regional Court ruled that this practice by Deutsche Wohnen was an unlawful circumvention. The lease and the side agreement count as one agreement, so the rent brake applies to the total rent.

Landlords now also use addenda in other ways, for example when tenants change instead of signing a new lease. The legal situation is much more difficult there. Read more in our guide An addendum instead of a new lease.

The resultRent reduced from 716 euros to 509 euros.Local Court Tempelhof-Kreuzberg, case no. 18 C 148/17; Berlin Regional Court, case no. 66 S 45/18

Do not sign side agreements about the rent under time pressure, and keep all documents.

If the previous tenant’s rent was already above the rent brake limit, the landlord may in principle keep charging it. But this only applies if the previous lease was signed before the rent brake was introduced in your city (in Berlin, before 1 June 2015). If the previous rent was already too high under the rent brake, it is not a valid exception.

Some housing companies still show tenants previous leases with excessive rents that were signed after this cut-off date. Gabriel International was particularly persistent and kept using this tactic even in court. Its lawyer even threatened the tenants with a criminal complaint.

The resultThe Local Court reduced the rent to 695 euros (net cold). After the landlord appealed, the parties settled before the Regional Court at 885.47 euros.Local Court Neukölln, case no. 13 C 436/18; Berlin Regional Court, case no. 66 S 128/19

If your landlord relies on the previous rent, they must disclose it. Check the date of the previous lease.

After an extensive modernisation, the rent brake does not apply to the first letting. But the bar is high: as a rule of thumb, around one third of what a comparable new build would cost must have been invested, and the flat must afterwards largely resemble a new build. The landlord has to prove this with a clear cost breakdown.

Akelius in particular has made so-called luxury refurbishment its business model. If the investment is not enough, costs are often artificially inflated, for example through high hourly rates for architects on simple work. Pure repairs do not count either, such as installing a legally required residual current device.

For an 83 m² flat in Berlin-Neukölln, we were able to show that there had been no extensive modernisation. The court agreed: the flat is covered by the rent brake.

The resultSettlement: rent reduced from 1,100 euros to 919.16 euros (net cold).Local Court Neukölln, case no. 10 C 293/18

Ask to see the cost breakdown. Repairs and mandatory upgrades do not belong in it.

The better the features, the higher the local reference rent. That is why some landlords make their flat look better on paper than it is. For a student flat in Berlin-Wedding (38 m², 327 euros net cold), Vonovia justified a rent increase with claims such as:

• “High-quality tiles”: In fact, they were cheap DIY-store tiles in worn condition.
• “Elaborate stucco in most rooms”: In fact, there was a little stucco in just one room, and it was already crumbling.
• “Low-barrier”: Photos showed a 6 cm step between the hallway and the living room.

Vonovia even went to court to push the increase through. In such cases, many tenants give in as soon as a letter from the court arrives. This student turned to CONNY.

The resultThe rent increase was successfully fended off, and Vonovia lost the case.Local Court Wedding, case no. 22c C 233/19

Compare the features listed with your actual flat and take photos.

More and more tenants enforce their rights with the help of service providers such as CONNY. Akelius therefore tried to prevent this with a clause in the lease: tenants were not supposed to be allowed to assign their claims to third parties.

CONNY challenged this in court and won on appeal. The Berlin Regional Court found that the clause put tenants at an unreasonable disadvantage. So tenants may assign their claims, and companies such as CONNY may enforce them on their behalf.

The resultBans of this kind on assigning claims in leases are invalid.Berlin Regional Court, case no. 65 S 241/20

If your lease contains such a clause, it does not stop you from instructing CONNY.