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How to use Berlin’s rental cap law to catch out illegal landlords

How to use Berlin’s rental cap law to catch out illegal landlords
A row of Altbau flats in Berlin-Mitte. Photo: DPA
Rents in the German capital are skyrocketing - despite a new law designed to keep them down. Here's what to do if you suspect that you're paying above-legal levels.

“Das kann einfach nicht sein!” (That simply can’t be!) 

This is the reaction of a native Berliner when shown a picture of a bedroom rented out in a WG by British expat Martha, 23. Martha pays €440 a month. Her strikingly narrow room is in an Altbau apartment in the up-and-coming eastern district Lichtenberg. It was advertised as 12 square metres, but in reality barely covers nine square metres. 

Add to this the fact that she can hear everything her flatmate does through her wall – a piece of plywood erected through the middle of a reasonable sized room to create two small ones.  Everything about the place cries “cowboy landlord.”

Martha is not the only expat dealing with an unfair rent. 

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On November 23rd 2020, the second stage of the rent cap law (Mietendeckel) came into effect. This means that landlords are legally required to lower their “Nettokaltmiete” (rent per square metre without bills) if it exceeds the upper rent-cap limit by over 20 percent. 

READ ALSO: Berlin rent freeze: 340,000 tenants paying too much for housing

Most landlords and agencies proactively adjusted their tenants’ rent agreements. However, some rotten apples are trying to find ways to circumvent – or flat-out ignore – the adjustments. 

While the Mietendeckel has courted controversy since its conception, the idea at its core is to protect tenants from being overcharged. Yet the process of reclaiming rent can be difficult, and is further complicated for non-natives as a lot of the resources are solely in German. 

Here’s how to hold your landlord to account, with some illustrative stories from other expats who have been through the process. 

Measuring up 

First of all, you’ll want to figure out exactly what your situation is. This means calculating the “Mietenspiegel” (average rent) or your area and type of building. Luckily, there are lots of online tools to help you with this. 

Using a measuring tape or stick, measure out your apartment and calculate how many square metres it has. 

READ ALSO: Here’s how Berlin residents can find out if they’re paying too much rent

It’s important you measure out your rooms as accurately as possible. A common way dodgy landlords overcharge is by quoting incorrect room sizes in their ads. When Martha’s four flatmates measured their rooms, they discovered that not a single one corresponded to the size advertised to them. 

Next you’ll need to find the year your building was constructed. If this isn’t in your contract, you may have to contact your landlord or the building authorities.

If you’re a Berliner, there’s an online map of building years here. Just click the little magnifying glass with an ‘A’ in the top left corner and enter your address! 

Now that you have all the figures, you can use an online Mietspiegel tool to calculate how much rent you should be paying. 

You can use this English version of the tool on the Berliner Mieterverein website to work out how much you’re overpaying.

The Mietspiegel is calculated using the size, location and construction-date of your building, as well as some details such as whether the apartment has an in-built kitchen, central heating, etc. 

Some tools will only give you an average rent – if this is the case, it’s time for some quick maths. Landlords are allowed to charge 10 percent over the average rent, so 1.1 x the Mietspiegel. 

If your rent is over 20 percent more than the Mietspiegel, it’s worth taking action. 

READ ALSO: How Germany is reforming its rental law in favour of tenants

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Confronting your landlord 

So, you’ve discovered how much rent you should be paying. Now it’s time for Germany’s favourite pastime: letter-writing. 

There are loads of sample letters online. It’s important you send this in German, as your landlord may not speak English and you want the letter to be easily accepted in court (should it come to that). 

Berlin-Mitte. Photo: DPA

Unless your building is regulated under special conditions, you should be able to just put your name and the old and new rent figures into the format and send it off. 

Nonetheless, most tenant associations recommend seeking legal advice for this step – and some even offer free consultations for members. 

Marc, 42, a technician currently renting and working in Mitte, became frustrated by the unaddressed maintenance issues in his building. He decided to seek legal help straight away. 

“[I] decided to pay a yearly cost for a Housing Rights Lawyer (recommended to me by a German friend),” he explains, “He realised that we are overpaying immediately. My property management agent tried to charge over the odds by promoting this apartment as newly refurbished – which it wasn’t.” 

He recommends that all expats join a Mieterverein, which are associations founded specifically to protect tenants and provide affordable legal advice. 

“I underestimated how helpful it would prove to be,” he writes. “As many expats tend to get exploited, I now think everyone should consider this option as an extra layer of protection and peace of mind.” 

READ ALSO: How to join a Mieterverein (renters’ association) in Germany

Getting heard

Ideally, your landlord will receive the letter and adjust your rent immediately. Reality is sometimes less generous. 

One way to encourage your landlord to respond is to use ‘registered post’. You can do this by visiting your local post office and asking to send the letter “per Einschreiben”. 

For an additional cost you can also receive an “Einschreiben Rückschein.” This means you’ll receive a receipt when the letter has arrived. 

For German-speakers, it’s also possible to arrange an Einschreiben online on the Deutsche Post website.  

This will guard you against claims that your landlord “never received the letter.”

Even so, your landlord may attempt to ignore or rebuff you. 

READ ALSO: How a cryptic letter you receive from your Berlin landlord could save you hundreds in rent

Several expats reported not having received an answer from their landlord despite several attempts to communicate with them over email, phone and by letter. 

Another reported receiving the answer “if this flat is too expensive for you, find another one” in response to their inquiries. 

Refusing rent 

This can be really frustrating. 

Some sites will suggest taking matters into your own hand at this point and forcing a response from your landlord by refusing to pay rent, or transferring the amount you believe is due under the rent-cap. We strongly advise you do not do this

Unless your landlord has acquiesced in writing to your intention to pay less rent, or your right to do so has been formally acknowledged by a legal or governing body, you put yourself at risk of immediate eviction because of Mietrückstand (refusal to pay rent). 

There are only very rare circumstances in which refusing rent is a good idea. 

Grounds for rejection

If your landlord does get back to you, there are a number of reasons they can quote to dispute the claim for a lowered rent. These include: 

  • The building is newly constructed (ready for occupancy after January 1st 2014) 
  • The building has been modernized or refurbished using funds from public sources
  • The apartment is in a dormitory building 
  • The apartment is owned by a recognised welfare organization 

If your landlord claims the Mietendeckel does not apply to their apartment, they will have to give a reason. They will also have to provide evidence to corroborate their claim, and if they don’t do this, you have every right to demand it!

You can also request information from your local council (Bezirksamt) to see if your building falls under one of the Mietendeckel exceptions. You may need a German-speaking friend to help you with this. 

If letter writing fails: Take action!

If it turns out your landlord was being dishonest, and you do have a claim to reduced rent, then it’s time to appeal to outside help. For German speakers, or those with German-speaking friends the easiest way to do this is to appeal to your local council (Bezirksamt). 

They will provide you with certification that you are being overcharged, which you can then send to your landlord as above. Now that you have written proof that your claim to a lower rent is valid, you can start paying the lower amount to your landlord – even if they don’t respond to the certificate. 

That said, if there is no written acknowledgement by the Vermieter, Berlin.de recommends you keep the money saved from your rent aside, in case the Bundesverfassungsgericht rules against the Mietendeckel this June.

If this happens, you may have to pay back the extra rent.

Alternatively, it’s possible to go the legal route and take your landlord to a civil court. This may even offer some protection from the uncertainty of the Mietendeckel law, as your lawyer will be able to argue on grounds other than the rent cap, e.g. false advertisement of space or failure to meet contractual obligations. 

Final complications 

Though this process has secured rent reductions for many, for some it has had unexpected and unfortunate consequences. Some expats living in Berlin reported that when they had requested their rent reduction, they had simultaneously received notice of the termination of their rental contract. 

                      Photo: DPA

Stephen had this experience with a flat in Reinickendorf. After the landlord agreed to lower the rent, she gave him three months notice to move out, claiming she wanted to move into the apartment herself (this is called “Eigenbedarf”). 

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Stephen writes, “I think [the rent reduction] was a trigger to kick us out.” 

It is possible to contradict an Eigenbedarf claim in cases where the justification of the landlord is unclear or questionable, or if the tenant is in a vulnerable position (e.g. pregnant, elderly, suffering with mental health issues). 

In Stephen’s case, he decided not to pursue this course of action. “I don’t want to spend more money on it. I found a much better flat!” 

Of course, not everyone has this option, but Stephen is right. Perhaps the best way to deal with illegal landlords is to untangle yourself from them as quickly as possible.


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