Cologne Local Court, 15.02.2019, Ref.: 208 C 188/18
In North Rhine-Westphalia, the rent freeze has been in force in 22 cities since mid-2015: Aachen, Bielefeld, Bocholt, Bonn, Brühl, Düsseldorf, Erkrath, Frechen, Hürth, Kleve, Cologne, Langenfeld (Rhineland), Leverkusen, Meerbusch, Monheim am Rhein, Münster, Neuss, Paderborn, Ratingen, Siegburg, St. Augustin, Troisdorf.
According to the ordinance, which came into force on 1 July 2015, the maximum permissible rent for the re-letting of existing flats in the cities concerned may be raised to the level of the local comparative rent plus ten percent.
In the Cologne District Court case discussed here, the question was whether the rent cap for the Cologne area can be cited as an effective limitation on rent increases.
Facts of the Case:
Plaintiff asserted assigned claims of a tenant against the landlord
The plaintiff was registered as a legal service provider with the Berlin Court of Appeal. It proceeded from assigned claims of a tenant whose landlord was the defendant.
In the rental agreement dated 1 December 2016, a net rent of EUR 945 was listed for a total area of 79.76 m² for the flat located in Cologne. In a letter dated 6 March 2017, the plaintiff objected to the amount of the rent and made the rent payments subject to reservation. In a letter dated 23 March 2017, the defendant provided information about the rent paid by the previous tenant.
Claim consists of overpaid rents due to NRW rent cap ordinance
After receiving information, the plaintiff demanded overpaid rent totalling EUR 456.56 and pre-litigation legal fees/legal costs of EUR 536.63 for the tenant for four months. When the defendant did not pay, the plaintiff sued the defendant before the Local Court of Cologne, arguing that she had the right to sue on the basis of an effective assignment. The amount was also appropriate, as the usual local rent plus 10 % was only EUR 717.75, so that an overpayment had been made, which could be reclaimed for 4 months with the present action. This amounts to 4 × 114.14 euros = 456.56 euros, as the previous rent would have been 830.86 euros.
The NRW Rent Limitation Ordinance is also effective. Finally, the legal costs of 536.63 euros are also to be reimbursed.
Judgement of the Local Court of Cologne:
Cologne Local Court dismisses action as there is no effective regulation within the meaning of Section 556d (4) BGB
The Cologne Local Court denied the plaintiff's claim based on the rent cap. The plaintiff was not entitled to the claims asserted against the defendant, as the only legally relevant sections 556d BGB were not currently applicable to flats in Cologne. There is no effective ordinance in NRW within the meaning of Section 556d (4) BGB that would subject the area of the city of Cologne as such with a tight housing market to the scope of application of the above-mentioned provisions limiting rents, so that neither the rent limitation listed in Section 556d (1) BGB (local rent + 10 %) nor the claims for information and repayment based on this would apply to Cologne.
The NRW Rent Limitation Ordinance is formally ineffective, as a sufficient justification for the assessment of Cologne as an area with a tight housing market has not been published.
§ Section 556d (2) sentence 5 and sentence 6 BGB requires, among other things, that a statement of reasons be provided to show which facts constitute the aforementioned area in the individual case. According to the federal government's draft bill on the Tenancy Law Amendment Act (see Bundestag printed paper 18/121 dated 10 November 2014), the obligation to provide reasons serves to make the state government's decision comprehensible, particularly with regard to the facts on the basis of which the areas are determined. In view of the interference with the right to property under Article 14 of the Basic Law associated with the ordinance, the justification is of particular importance, as is also shown by the obligation to provide reasons, which is not usual for other ordinances. This would mean that the determination and demarcation of areas with a tight housing market would require a particularly careful review of proportionality in order to take account of the constitutional requirements of property protection (see Schmidt/Futterer, Mietrecht, 13th edition, Section 555d BGB, margin note 39).
This should also make it possible for the citizen concerned to review the corresponding justification and understand the reasons for it in individual cases, which would require the justification to be made publicly available (see Schmidt/Futterer, loc. cit.). Merely abstract descriptions are not sufficient (see LG München I, judgement of 26 December 2017 - 14 S 10058), (see also LG Frankfurt, WuM 2018, 276, Landgericht Hamburg, WuM 2018, 498, comment by Dr Börstinghaus on Landgericht München, PR-MietR 2/2018, note 1).
The rent cap ordinance was not properly justified
The justification for the ordinance in NRW does not fulfil these requirements.
The criteria and their weighting, which are generally used to categorise an area as having a tight housing market, are mentioned in the explanatory memorandum. However, the specific application of these criteria to the city of Cologne is missing. Which criteria for the categorisation, in particular in what proportion to each other, led to the inclusion of the city of Cologne is lacking any further details. The final step of concrete application for or to the city of Cologne is missing.
Reference to a study by the Institute FB March 2015 is not sufficient
Insofar as reference was made in the statement of grounds to an investigation by the FB Institute in March 2015, this would not be sufficient either. A detailed report by the FB Institute in Hamburg could not be found by the court on the internet or otherwise published, as had already been stated at the hearing. However, to the extent that a short final report from March 2015 was available on the internet, it suffers from the same deficiencies as the statement of grounds itself.
It was neither apparent nor had the plaintiff provided any further details that sufficient justification would otherwise have been publicly available.
In view of the above-mentioned special significance of the reasoning, the violation resulted in the nullity of this ordinance (see generally LG Munich I, loc. cit.).
Source: Cologne Local Court
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