A rental agreement can contain uncomfortable traps for the tenant. Therefore, tenants should pay attention to a few details before signing. Those who prefer to leave this task to a professional can also have their rental agreement checked.
What tenants are allowed to do and what rights and obligations they have are stated in the rental agreement. However, some contracts are not particularly beneficial for tenants. Therefore, you should read the contract carefully before signing it and examine it for any pitfalls. Below are 8 rental agreement tips to help you make the right decision.
- 1. Rental agreement tips: Is the information about the tenant correct?
- 2. Has the rental apartment been described correctly?
- 3. Is the correct apartment size indicated?
- 4. Does the rent correspond to the usual rent?
- 5. Is it a temporary lease?
- 6. Has a graduated or index rent been agreed?
- 7. Is there a mutual exclusion clause?
- 8. Is there a minor repairs clause and a cosmetic repairs clause?
1. Rental agreement tips: Is the information about the tenant correct?
In principle, all people who move into the apartment should also be in the rental agreement. Because only those who are in the contract and have signed it are also a tenant, with all rights and obligations. Underage children are of course not contractual partners, but their number is stated in the rental agreement, because the landlord needs this information for his utility bill.
Caution: Anyone who allows other people to move into the rented apartment without the landlord’s permission risks a warning or, in the worst case, termination.
2. Has the rental apartment been described correctly?
Tenants should check the description of the apartment to ensure that all of the rented parts of the contract, such as a fitted kitchen or an attic compartment, are actually present and free of defects.
3. Is the correct apartment size indicated?
Furthermore, the information on the size of the apartment should be checked for plausibility. Because: If the apartment is more than ten percent smaller than specified in the contract, there is a defect that justifies a rent reduction. For example, if a 100 square meter apartment that was rented for 1,000 euros actually only has 85 square meters, the tenant can reduce the rent by 150 euros. In addition, the advance payment for operating costs can be reduced accordingly and the landlord must then stick to the actual size of the apartment when billing.
However, the Federal Court of Justice (BGH) no longer seems to want to unconditionally adhere to this legal opinion. At least in the case of later rent increases, the landlord must use the actual and not the number of square meters specified in the contract as a basis – even if the apartment size should differ by less than ten square meters. This was decided a few years ago by the highest civil judge (Az: VIII ZR 266/14).
Caution! However, a prerequisite for a possible rent reduction is that the apartment size is bindingly stated in the rental agreement. Only then can a tenant refer to it. Information with an approximately according to the BGH is also binding (BGH VIII ZR 144/09).
On the other hand, it is non-binding if the information was only given orally or if there is an addition such as “This information is not used to determine the rental object due to possible measurement errors”. There is no obligation to state the size of the apartment in the rental agreement. However, if it is specified in a binding manner, it is best to also include the calculation basis in order to avoid later disputes.
4. Does the rent correspond to the usual rent?
In many larger cities there are rent indexes that provide information about the local comparative rent. They can be requested directly from the municipality or from tenant protection associations. In municipalities without a rent index, the usual local comparative rent can be determined using three comparative apartments or with the help of an expert report.
However, the rent amount can also be higher than the usual local rent in the case of a new rental – in municipalities without a rent brake it is significantly higher, in municipalities with a brake it can be up to 10 percent. And: The brake does not apply to completely refurbished or new apartments.
Also important: Has an inclusive rent been agreed or are the ancillary or operating costs billed separately? Then the tenant should check whether the advance payments for the operating costs have been set realistically, too high or too low. The best thing to do is to have the landlord show you the utility bill from an earlier billing period.
5. Is it a temporary lease?
It is also possible to conclude a temporary rental agreement. However, this must contain a qualified reason for the fixed term, e.g. later personal needs of the landlord. A temporary tenancy is usually disadvantageous for the tenant. It cannot terminate prematurely and must also move out after the expiry of the time limit.
However, if there is no reason for a fixed term in the rental agreement or if it is no longer applicable, the fixed-term rental agreement automatically becomes an open-ended rental agreement with a notice period of three months for the tenant.
6. Has a graduated or index rent been agreed?
In the case of a graduated rent, the basic rent increases regularly in the staggered scales agreed in the rental agreement. With an index lease, the rent rises in step with the rise in the cost of living. The advantage for the tenant is that proper rent increases are not possible even if the rent level increases significantly more than the agreed scales or the price index. Modernization rent increases are usually not possible either.
The disadvantage for the tenant, however, is that the rent may later be higher than it would be with a normal rental agreement and can also be above the local comparative rent.
7. Is there a mutual exclusion clause?
It can be agreed in the lease that both the tenant and the landlord refrain from giving notice for a period of up to four years. Sounds fair, but it’s not. In any case, the landlord should only give proper notice if there is a legal reason for termination – such as personal use. The tenant, on the other hand, can always terminate a contract without a cancellation waiver with a three-month notice period.
8. Is there a minor repairs clause and a cosmetic repairs clause?
Not all cosmetic and minor repairs clauses are effective. If they are, however, they represent a disadvantage for tenants, as obligations are imposed on them that go beyond the statutory provisions.
This is how you can tell whether a cosmetic repair clause is effective:
- At the start of the rental period, the apartment must have been freshly renovated or given to the tenant in an almost freshly renovated condition.
- The renovation deadlines must be flexible.
- There must not be too many obligations imposed on the tenant.
This shows whether a minor repair clause is effective:
- The amount of the costs to be borne by the tenant for individual repairs must be clearly limited.
- The reimbursement of repairs by the tenant must be limited to parts of the apartment that are frequently used by the tenant.
Before signing, you should read the rental agreement carefully and, if there is any doubt – if there are too many disadvantages – check it out. Private landlords in particular often use outdated rental contract forms and have no in-depth knowledge of tenancy law.
However, outdated lease clauses can also be beneficial for the tenant. Because if individual clauses are ineffective, the tenant does not have to adhere to the corresponding regulation. For example, an ineffective cosmetic repair clause means that the tenant does not have to do anything.