Wrong apartment size in the rental agreement
Have you ever actually checked the apartment size stated in your rental agreement? It can really pay off. If there is a discrepancy, this has various legal consequences for tenants and landlords. Here you can find out exactly which ones.
Table of contents
The tenant is entitled to actually use the living space stated in the rental agreement. If the floor area deviates from this, there is in principle a defect in the rented property. However, the discrepancy must be significant for the rent to be reduced. In this context, the Federal Court of Justice (Bundesgerichtshof, BGH) has ruled on several occasions that a discrepancy of ten percent or more between the apartment size stated in the rental agreement and the actual living space constitutes a significant defect.
This "de minimis threshold" was set so that the tenancy between tenant and landlord is not permanently disrupted by trivial matters. Whether a discrepancy of, say, nine percent already constitutes a significant defect must, however, be examined on a case-by-case basis.
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Most of the service charges in the service charge statement are calculated on the basis of square metres. If the actual living space is smaller than the size stated in the rental agreement, you can save a considerable amount on service charges. Unlike in the case of rent reduction, the Federal Court of Justice has ruled that the actual apartment size must be used when preparing the service charge statement. Otherwise, tenants would be disadvantaged relative to one another, as service charges must be apportioned on the basis of objective criteria. If the apartment size is stated incorrectly in the rental agreement, this objectivity is no longer guaranteed.
The service charge statement must therefore always be prepared on the basis of the actual living space. So: it pays to measure.
Effects on rent increases
Rent increases are always based on the price per square metre, as this is used as the benchmark for comparison with the local reference rent (ortsübliche Vergleichsmiete) according to the rent index or comparable apartments. If the apartment size is stated incorrectly, the price per square metre also changes. Depending on the discrepancy, this can have a serious impact on the classification within the rent index and thus on the impending rent increase.
So if there is a dispute about a rent increase, it may be worth measuring the actual apartment size, as this is relevant to the increase. Otherwise the tenant would be put at a disadvantage. With several rent increases over the course of the tenancy that are based on an incorrect apartment size, a large incorrectly calculated sum can accumulate.