Since the publication of the 2021 rent index, there has been uncertainty about its effectiveness. But the Berlin Regional Court has now at least ruled: Although the Berlin Rent Index 2021 is invalid, it is a means of justification for rent increases.
In its judgement of 24.05.2022 – 65 S 189/ 21 and its judgement of 09.06.2022 – 67 S 50/22 the Berlin Regional Court had to decide on the permissible amount of a graduated rent and the amount of a re-letting rent. The landlords had used the Berlin rent index 2021 to justify the rents. The dispute was whether the Mietspiegel 2021 is effective and can therefore be used as a justification at all.
Formal means of justification
In principle, rent increases must be justified in accordance with § 558a Abs. 2 BGB. The background to this legal obligation to give reasons is that the tenant is to be given information about the factual reasons for the rent increases. However, the means of justification listed there are not exhaustive. Rent rolls are one means that can be used to justify a rent increase. However, a prerequisite for this is that they are effective.
No effective update of a rent index
The reason given for the invalidity of the 2021 rent index was that the 2019 rent index was already an update of the 2017 rent index. An update of the 2021 rent index as a qualified rent index would thus be excluded. In the opinion of the 65th Civil Chamber, the amount of the maximum re-letting rent pursuant to the §§ 556d, 557a IV BGB can nevertheless be justified according to the Berlin rent index 2021. It regards the rent index of 2021 as a simple rent index dran up by updating the rent index 2019.In the opinion of the court, every new version as well as every update of a qualified representative list of rents always represents a new version of a simple representative list of rents. Accordingly, the rent index of 2021 is an update, but the first update of a simple rent index and therefore permissible.
Local comparable rent
This becomes relevant when considering whether the old or the new law can be used to determine the amount of rent. On 01.01.2020, the assessment period, which forms the basis for the term “local comparative rent”, was changed. The assessment period was increased from four to six years for changed new and existing rents. However, it is clear from Art. 229 § 50 II EGBGB that rent indexes with the old assessment period continue to apply and accordingly the old law is also applied. The prerequisite for Art. 229 § 50 II EGBGB is that an effective rent index already exists. Due to the effectiveness of the 2021 rent index, the old law applies during its two-year term in accordance with Art. 229 §50 II EGBGB. Die Bestimmung der ortsüblichen Vergleichsmiete wird demnach ein vierjähriger Betrachtungszeitraum berücksichtigt.
Consequences for tenants and landlords
The decisive question is, of course, what consequences this decision has on both the tenant’s and the landlord’s side.
The answer is: For both parties, this has predominantly positive legal consequences. On the landlord’s side, a rent increase is not tied to an unreasonable effort and associated costs. A rent increase can thus be justified on the basis of the Mietspiegel 2021. Otherwise, a rent increase would require expert opinions or the use of comparative flats. This procedure is associated with a great deal of effort, time and expense. This approach would have brought disadvantages on the tenant side, such as stronger claims by landlords against tenants. These claims would also have been more difficult to control.
For landlords this means: The Berlin Rent Index 2021 justifies rent increases and can thus be used as a means of justification.