The two most common problems between landlords and tenants involve security deposits and evictions.
Before renting privately in Germany, tenants usually have to pay a security deposit to cover damage to the quarters occurring during the lease period.
Security deposits often equal two or three months rent. Under German law, they may not exceed three months rent and may be paid in three monthly installments. The first installment is due upon the beginning of the lease.
Tenants often pay the security deposit into the same account as their monthly rent; however, under German law, the landlord must keep the security deposit in a separate account. Keeping security deposits in a separate account protects the tenants if the landlord loses his assets in a bankruptcy action.
Interest accrued on the security deposit must be paid to the tenant when the tenant moves out, if the premises are returned to the landlord in good condition and without any other payments, such as rent, still outstanding.
If the landlord keeps all or part of the deposit, he must give the tenant a list of the damages and repair estimates within a reasonable period of time after the tenant moves out. A “reasonable period of time” can be between three and 12 months under German law, but only if assessing the damage is difficult; otherwise, the deposit must be returned earlier.
Since the deposit might not be returned to the tenant right away, the tenant should consider giving a power of attorney to someone who is going to remain in Germany to deal with the landlord for the tenant until the matter is finally resolved.
There is no hard and fast rule under German law about what constitutes “damage” that tenants are liable for, so this is a good item to resolve ahead of time in your lease. Of course, there can also be arguments about whether a particular item of damage occurred during the lease period.
To protect yourself from such arguments, do a thorough, written inventory of the condition of the leased premises before you move in and after you move out, and ask the landlord or a housing official to verify the inventory by initialing or signing it.
When it comes to evictions, landlords cannot simply order you to get out of your quarters, rather they must comply with a number of procedural requirements under German law.
The landlord must give the tenant a written termination notice before the eviction. For leases of up to five years duration, three months notice is required, and if you receive the notice after the third working day of the month, that month does not count as one of the three months.
The notice must explain the justification for the termination. German law accepts several grounds for termination.
A landlord who needs to use the rented premises for himself, his family, or a member of his household has valid grounds, but only if the need is compelling; a mere wish to live in the quarters is not sufficient. Termination is also legal if a landlord wishes to sell the quarters and can prove that selling the property “with tenants” will result in substantially less profit than selling it “without tenants.”
A landlord may also terminate a lease if the tenant repeatedly violates the lease, by ignoring quiet hours, for example, or by subletting without authorization, keeping pets without permission, or damaging the property.
In such cases, the landlord must usually give the tenant a warning first. However, termination without prior warning is possible if the tenant is guilty of a severe breach of the lease, such as not paying the rent.
Even if the landlord complies with the three-month written notice requirement and has valid grounds, the tenant can still object to the termination and demand continuation of the lease, if the termination will cause undue hardship to the tenant. The tenant must file the protest with the landlord at least two months before the termination date.
Undue hardship exists if adequate substitute housing cannot be obtained under reasonable conditions.
For example, if a Soldier receives an eviction notice just a few months before his PCS date, that probably would constitute a hardship, since suitable quarters for such a short-term lease are very hard to find. Pregnancy, physical handicaps, and old age may also constitute hardships, depending on the circumstances.
Even if the termination notice is valid and no hardship defense exists, the tenant will not be kicked out into the street right away. The landlord must obtain a court order before physically removing a tenant from the quarters, and must notify the tenant before the court hearing. The tenant may be present at the hearing and may request a grace period of up to a year.
If you receive an eviction notice, contact your local Legal Assistance Office or Housing Referral Office immediately, and request an appointment with a German attorney who can offer further advice on how to protect your interests.
The Legal Assistance/Claims Office is located at the Clay Kaserne Legal Center, Building 1023N. Hours of operation are 9 a.m.-noon and 1 p.m.-4 p.m. Monday, Tuesday, Wednesday and Friday. Hours of operation for Thursday are from 1 p.m.-4 p.m.
(Courtesy Wiesbaden of the Legal Assistance Office)