Table of contents
When does the special right of termination apply in case of a rent increase?
At the beginning there is one important condition for the validity of the special right of termination: the increase in rent must not be part of the rental agreement. If the increase is part of an already agreed graduated rent, you cannot terminate your lease prematurely. However, if the rent increase announced by the landlord is new to you, you as a tenant have a good chance of enforcing the special right of termination according to § 561 BGB.
The amount of the monthly rent is a central part of the rental contract, which the landlord is not allowed to change so easily. However, there are certain reasons that still entitle him to do so. The applicability of the special right of termination usually depends on whether the basic rent or the warm rent is increased.
To which rent increases does the special right of termination apply?
After modernisation of a flat, the landlord may apportion up to eleven percent of the costs of modernisation to the annual rent exclusive of heating. However, the landlord is not allowed to exceed the local customary comparative rent with the new rent level. Even if he adheres to this rule, the tenant is entitled to give special notice of termination. However, you should first check whether the increase is permissible. You may be able to ward off the rent increase directly.
The landlord may also increase your rent exclusive of heating to bring it in line with the comparative rent customary in the area. Doing this, the landlord must adhere to two important rules:
- The rent may not be increased 15 months after the beginning of the lease and 15 months after the last rent increase. Example: You moved into the flat on 1 August 2019. Then the rent may be increased from 1 November 2020 at the earliest. If the rent becomes more expensive from 1 November 2020, it may only be increased again from 1 February 2022.
- Within a period of three years, the rent excluding heating may not increase by more than 20 percent. Example: When you move into your new flat, your monthly rent is 576 euros. After three years, the basic rent may not exceed 691 euros.
Whether or not the landlord adheres to these guidelines when adjusting to the comparative rent: you can enforce the special right of termination. Nevertheless, it may be worthwhile to check the increase beforehand in order to ward off the rent increase.
Can I also ward off the rent increase directly?
Many factors can invalidate a rent increase. Therefore, never agree directly to the announcement of a rent increase and check it first. In the announcement of the rent increase, the landlord must comply with the following guidelines:
- The announcement must be made in writing,
- it must be signed by all landlords
- it must be addressed to all tenants
- the tenant / tenants must be asked to give their consent and
- the reason for the rent increase must be included
Some landlords point out the special right of termination to their tenants in the announcement of the rent increase. However, the landlord is not obliged to do this. So if no sentence is included to explain the special right of termination, it is not a formal error.
Gaining time through objection
Even if the rent increase cannot be fended off in the end, you can gain time by objecting. You can inform the landlord that you do not accept the rent increase. It is important that you give a reason and request a corrected announcement. The landlord must then draw up a new announcement of the rent increase and set a later start date for the higher rent payments.
CONNY can help you with checking, whether your rent increase is permitted. Use our specialised partner lawyers to fend off your rent increase and stay in your flat.
When can I not enforce the special right of termination?
When can I not enforce the special right of termination?
If the landlord wants to increase the warm rent instead of the basic rent, the special right of termination usually does not apply.
Increase in operating costs
The annual service charges have increased and the landlord passes these costs on to his tenants. In this case the rent increases, which unfortunately means that the special right of termination cannot be applied. However, you should check whether the increased costs really are service charges. For example, the landlord may not pass on administrative costs to his tenants as incidental costs.
Have you already agreed to the rent increase?
If you have already agreed to the rent increase in full or have been sentenced to agree by a court of law, you can no longer enforce the special right of termination. However, if you have only partially agreed, the special right of termination still applies.
Give partial consent
You give a partial consent if you accept the rent increase only up to a certain amount.
Example: The landlord announces a rent increase of 50 Euros and you only agree to a rent increase of 20 Euros in your answer.
You do not have to give a reason, but only the exact amount up to which you agree to the increase. Once partial consent has been given, the partial rent increase is considered a new agreement. The landlord may therefore increase the rent to the amount accepted by the tenant.
Please note: the landlord can still try to claim the difference (30 euros in the example).
Ignore the landlord's announcement
If the tenant ignores the announcement of the rent increase and does not react, the landlord may try to enforce the agreement in court. The tenant may then be ordered to give his consent. If the new increased rent is then not paid, the landlord may again sue. The special right of termination can no longer be enforced.
How to successfully enforce the special right of termination
You have examined your options for defending yourself against the rent increase and now you want to enforce your special right of termination. Here we explain step by step how to proceed:
1. Announcement of the rent increase - what now?
Make a note of the date on which you received the announcement. This day is used to calculate the deadlines to be met. You don't know exactly on which day you received the announcement? Then check the postmark on the envelope of the letter and use this date as a basis.
2. Until when does the special right of termination apply?
On the day the announcement is received, the period of reflection that the landlord must grant you begins. This period is valid until the end of the second month following the date of receipt of the notice. Within this period, the rent may not yet be increased.
Example: Your landlord sends you an announcement of the rent increase on 10 August, which arrives on 11 August. From that day up to and including 31 October, the reflection period applies, within which you can react to the announcement. The rent may be increased from 1 November at the earliest, unless you object or give notice.
3. This is how the extraordinary termination must look like
In order to successfully enforce the right to special termination, you should terminate within the reflection period. The termination must meet the following conditions:
- The termination must be in writing,
- all tenants must be listed,
- the notice must be addressed to all landlords,
- the reason for termination must be included, and
- all tenants must sign the notice of termination.
4. Send the notice of termination in time
The letter of termination must reach the landlord at the latest on the last day of the reflection period. The last day in this case shall be the last calendar day of the second full month after receipt of the notice of increase by the tenant. If this calendar day is a Saturday, Sunday or public holiday, the next working day shall be sufficient. It is important that the landlord actually has access to the notice of termination on this day at the latest. It is not sufficient to drop it in the letterbox on this day.
Example: You write and sign the notice on 29 October, a Friday. You post the letter on Saturday 30 October. The notice reaches the landlord on Monday 1 November. As the last day of the reflection period, 31 October, is a Sunday, the period does not end until the next working day, Monday 1 November. Thus, the notice of termination reaches the landlord just in time.
We recommend that you send the letter of termination at least two days earlier for security reasons. If the letter arrives at the landlord only one day late, the notice period is extended by another month.
Tip: When sending the notice of termination, it is advisable to send it by registered letter with advice of receipt. This way you can prove that you have given notice of termination in good time, because you as a tenant are responsible for this.
5. End of the tenancy
The extraordinary notice of termination shall come into force at the end of the second month after the end of the consideration period, so that the tenancy ends. This is therefore at least four months after you have received the announcement of the rent increase.
Example: If you have given notice of termination on 31 October, the notice will take effect two months later and you must move out of your flat on 31 December.
Once you have given the special notice, the landlord is not allowed to increase the rent until the end of the lease. This means that you continue to pay your old rent until the end of the lease. The landlord is not obliged to confirm receipt of the notice of termination. The registered letter is sufficient proof that the landlord has received the notice.
What are the alternatives to special termination due to an increase in rent?
If you do not have the right to extraordinary termination or if you do not wish to terminate your flat, there are other options. Here is a brief overview:
- Give notice of termination: Check the agreed notice period in your tenancy agreement. Usually a three-month notice period is agreed in the contract. In this way, you can get out of the rental agreement even faster with a ordinary notice than with the special right of termination.
- Oppose the increase: Save time by objecting to the increase with reasons. The landlord must then grant you a new period of consideration.
- Fend off the increase: Your landlord must comply with certain requirements in order to be allowed to increase the rent. Many landlords do not do this. Prevent a rent increase so that you can stay in your flat.
Not sure what to do next? CONNY helps you to react correctly now. Let our partner lawyers check your rent increase simply and conveniently - without any cost risk:
- You send us your data on the rent increase.
- We will have the rent increase checked for you free of charge.
- If a defence is possible, we will pay a partner lawyer.
- You only pay if the defence against the rent increase is successful.