Landlords and tenants can use a rental agreement to regulate certain aspects of the tenancy. This includes the amount of the basic rent. So can the provisions of the rent control law be circumvented by contract?
If the rent agreed in the lease agreement is higher than permitted under the rent control law (maximum 10% above the local comparative rent, unless exceptions apply), the portion of the base rent that exceeds the legally permissible amount is invalid. Despite any provisions to the contrary in the rental agreement, the tenant therefore only owes the landlord the portion of the basic rent that is permitted by law, i.e., according to the provisions of the rent control law. This does not apply if the provisions of the rent control law do not apply in exceptional cases. After signing the lease, the tenant has 30 months to reclaim any excess rent paid from the landlord. After the 30 months have expired, the tenant can only demand a reduction in rent for the future.
Consequently, this means that there is no harm in signing a lease as a tenant that includes a legally inadmissible base rent. In this case, the landlord was never entitled to demand a corresponding rent amount in the contract and therefore cannot invoke the lease if the tenant later complains that the rent is too high. The basic idea behind this legal provision is that tenants and landlords are in an imbalance in a tight housing market, such as that prevailing in major German cities: The tenant has virtually no bargaining power vis-à-vis the landlord and is therefore inclined to sign a lease even if it contains unlawful provisions, such as a clause stipulating a rent that is far too high.
If the tenant wishes to reduce their rent, the law requires them to submit a written complaint to the landlord regarding the excessive rent. The landlord is then obliged to reduce the rent to a legally compliant level and, if necessary, refund any excess money paid to the tenant. Since both the calculation of the maximum rent and the drafting of a complaint require legal expertise, it is advisable to hire a professional legal service provider to reduce the rent. If you are unsure whether the rent in the unsigned lease is too high, you should also have it reviewed by a legal expert. They can also take legal action against the landlord if they refuse to reduce the rent at a later date.
