Special termination right after a rent increase: when, and with what notice?

When does the special termination right apply to a rent increase?

The special termination right is your right to end the tenancy early after a rent increase has been announced, without the agreed notice period and without paying the increase (§ 561 BGB). It arises as soon as the landlord demands one of two increases:

• Adjustment to the local comparative rent (§ 558 BGB). This is subject to a waiting period of 15 months since you moved in or since the last increase, and to the cap (Kappungsgrenze): at most 20 percent in three years, or 15 percent in cities with a tight housing market.
• Modernisation surcharge (Modernisierungsumlage, § 559 BGB). The landlord may pass on 8 percent of the modernisation costs per year, up to 3 euros per square metre within six years, or 2 euros where the rent is below 7 euros per square metre.

The increase letter must be in text form and give reasons, for example the rent index (Mietspiegel), three comparable flats or an expert report (§ 558a BGB). From the day it arrives you have until the end of the second month to decide whether to agree (§ 558b BGB). This period for reflection and the notice deadline under § 561 BGB end on the same day. If you agree, you owe the new rent from the third calendar month after receipt.

Whether the increase is lawful makes no difference to your right to give notice. Check it anyway: if it is flawed, you can fight it off and stay in the flat.

The right also applies with a fixed-term lease and with an agreed waiver of termination. A clause that excludes or shortens it is void (§ 561 Abs. 2 BGB). Even the announcement of a modernisation triggers its own special termination right: you give notice by the end of the month following receipt of the announcement, with effect from the end of the month after next (§ 555e BGB).

Example: Your net rent is 800 euros. On 11 August a letter arrives raising it to 900 euros.

You can give notice until 31 October. The tenancy then ends on 31 December, and until then you pay 800 euros. Had you agreed, 900 euros would have been due from 1 November. The special termination saves you 200 euros for November and December.

When does the special termination right not apply?

• Stepped and index rent: The increase is written into the lease; there is no special termination right. Check instead whether the rent steps or the index adjustment were validly agreed.
• Higher operating costs: An adjustment to the advance payments or a back payment is not a rent increase within the meaning of § 561 BGB. Check the service charge statement (Nebenkostenabrechnung): administration costs, for instance, cannot be passed on to you.
• Full consent or a court ruling: If you agreed to the increase in full, or a court ordered you to agree, the right is used up. Partial consent, say 20 instead of 50 euros, keeps it alive; the landlord can, however, sue for the difference.
• Commercial premises: § 561 BGB covers residential space only. For an office, shop or practice the right exists only if the lease grants it.

The landlord has no special termination right of their own. Refusing the increase is not a ground for termination; for ordinary notice the landlord needs a legitimate interest such as personal use (Eigenbedarf, § 573 BGB). If you do not react at all, the landlord can sue for your consent for three months after the consent deadline passes. So use the deadline: agree, agree in part, object or give notice.

How do I use the special termination right?

1. Note the date of receipt. From the day the increase letter reaches you, the deadline runs until the end of the month after next.
2. Give notice in writing. The notice must be in written form (Schriftform), signed by all tenants, addressed to all landlords, and state the rent increase under § 561 BGB as the reason.
3. Deliver it in time. The letter must reach the landlord no later than the last day of the deadline, ideally by registered post or against a signed receipt. If the last day falls on a weekend or public holiday, the next working day counts.
4. Keep paying the old rent. Once you have given notice, the increase does not take effect. You pay the previous rent until you move out.

The notice letter needs your address, the landlord's, the date and one clear sentence: “I hereby terminate the tenancy extraordinarily under § 561 BGB because of your rent increase demand of 11 August, with effect from 31 December.” The notice must not contain a condition such as “unless you withdraw the increase”. If you want to move out sooner, also give ordinary notice or propose a replacement tenant to the landlord.

What are the alternatives to special termination?

• Give ordinary notice: With the statutory three-month notice period (§ 573c BGB) you are often out of the lease sooner than with the special termination.
• Object to the increase: Name the errors (missing reasons, wrong rent index, waiting period, cap) and demand a corrected letter. The deadline then starts again.
• Fight off the increase and stay: Many increases are unlawful. CONNY has your rent increase checked for free and pays the partner lawyer; you pay only if the challenge succeeds.
• Check your starting rent: In cities with the rent brake, the rent at the start of the lease may be at most 10 percent above the local comparative rent (§ 556d BGB). If yours is higher, you can have it reduced; that is worth doing regardless of the current increase.

Frequently asked questions about special termination after a rent increase