In Germany, the lease regulates the rights and obligations of the tenant and landlord during the tenancy. In the event of a dispute in particular, it can be decisive what was stipulated in it.
In most cases, so-called form rental agreements are used for rentals, which are drawn up by the landlord. In principle, however, it is also possible for tenants and landlords to negotiate individual clauses or even the entire contract individually. Below is a look at German rental agreements.
German rental agreements are protected by the law
If a form rental agreement issued by the landlord was used, case law assumes that the landlord is the stronger contracting party. Because the tenant has no influence on the content of the contract and can only decide whether to sign it or not. As a result, all clauses of the contract are considered to be general terms and conditions.
Clauses that put the tenant at a disadvantage as a weaker contractual partner are then ineffective. This is clearly regulated in the German Civil Code (Section 307).
The BGB protects tenants in § 307 from unfair contractual provisions: “Provisions in general terms and conditions are ineffective if they disadvantage the contractual partner of the user inappropriately contrary to the requirements of good faith. Inappropriate discrimination can also result from the fact that the provision is not clear and understandable ”.
- Rental agreement tips: 8 tips on what tenants should pay attention to before signing a rental agreement in Germany
Types of leases
There are different types of rental agreements:
- In the case of an open-ended rental agreement, the tenant can always terminate the contract with a notice period of three months without giving reasons (Section 573c BGB). The landlord, on the other hand, can only terminate the contract if he has a legitimate interest, for example his own use.
- In the case of an open-ended rental agreement with a mutual waiver of termination , both tenants and landlords waive their right to terminate for a certain period of time. However, a maximum of four years may pass from the signing of the rental contract to the end of the rental contract – if the period is longer in the contract, the corresponding rental contract clause is ineffective.
- With index leases, rent increases are based on the price index for the standard of living of all private households in Germany.
- In the case of the graduated lease, the contract specifies when and how much the rent will increase in the future.
- In the case of a sublease, the main tenant is the landlord of the subtenant.
Verbal rental agreement
A rental agreement does not necessarily have to be concluded in writing, so there is also the option of only concluding a rental agreement orally. However, there are some special features: On the one hand, the statutory provisions of the German Civil Code then apply. However, special regulations that deviate from this are then difficult to agree on in a legally secure manner.
So it would theoretically be conceivable that it is agreed orally that the tenant has to take over the cosmetic repairs. However, such an agreement is difficult to prove in the event of a dispute and even if there is agreement on the agreement, it is difficult to verify whether the takeover of the cosmetic repairs was also effectively agreed. As a result, the obligation will therefore usually remain with the landlord.
The situation is similar with the operating costs. Here the BGB only regulates that the contracting parties can agree.
Lease contract better in writing
In practice, from the landlord’s point of view, it is therefore always advisable not to conclude an oral rental agreement, but a written one. And the tenant should also be interested in the written form, because any discrepancies can quickly lead to a dispute.
It can be advantageous for both parties to draft the rental agreement as precisely as possible. Living together in the house can, for example, be regulated in house rules, which can also be part of the rental agreement.
That belongs in a lease in Germany
Leases can be very different. Usually a written contract is concluded. If this is the case, there are a few things that must be mentioned in the contract:
- First and last name of all tenants and landlords,
- the address of the property including the location of the apartment in an apartment building and
- the amount of the rent and, if applicable, the deposit (a maximum of three months’ rent)
- Usually, the lease also contains provisions on, for example, operating costs or cosmetic repairs.
If the tenant and landlord have not made certain contractual provisions, the provisions set out in the German Civil Code (BGB) automatically apply (Sections 535 to 580a).
In addition, the landlord can assign various obligations to the tenant in the lease. This can be, for example, clearing snow in winter or gardening. However, the landlord cannot pass all duties on to the tenant. Clauses that oblige the tenant to participate in the costs of major renovations, which limit his ability to terminate or which require a deposit of more than three months’ cold rent, are ineffective. In general, the following applies: All clauses that depart too far from the legal model are ineffective.
In the case law, however, it has prevailed that the landlord may oblige the tenant to do cosmetic repairs – in particular the usual painting work – himself. But here, too, the following applies: If the clause demands too much, it is ineffective. This applies, for example, to rigid renovation clauses. If the tenant had to comply with these, he might be obliged to repaint the apartment, although objectively this would not be necessary at this point in time.
The traps lurk here
To avoid unpleasant surprises, it is worth checking the rental agreement carefully before signing it. If, for example, it is stated that the size of the apartment is not binding, it may be that the apartment is actually smaller. According to the rulings of the BGH, a deviation of up to ten percent is permissible; a defect only exists above this.
Tips and tricks for the German rental agreement
Anyone who concludes a rental agreement should know exactly their rights and obligations. House rules can regulate that tenants are obliged to clean the stairwell. If there is no such regulation, the tenant does not have to do anything. The tenant also has rights in other aspects: For example, the landlord may not keep a duplicate key to the apartment.