In residential tenancy law, a distinction must be made between two different types of fixed-term leases. The type of fixed term determines whether or not rent control applies.
There are two types of fixed-term leases in German residential tenancy law:
In option 1, the tenant's main place of residence is the apartment. This can also be the case if it is a second home, as is often sought after by students. The desire for a fixed term primarily comes from the landlord, who may want to use the apartment for themselves or a family member after the rental period has expired. In the case of such a fixed-term rental agreement (§ 575 BGB), the maximum rents under the rent control law apply.
The situation is different in variant 2: here, the living space is only rented for temporary use (Section 549 (2) No. 1 BGB), which is the norm for hotel rooms or vacation apartments, among other things. In such situations, it is clear that the tenant does not need to be overly protected because their center of life is elsewhere and they have only temporarily left this place for a specific purpose (e.g., a work project or a semester abroad). In this case, the desire for a fixed term comes from the tenant. The rent cap does not apply to such temporary rentals, provided that the fixed term was agreed in accordance with the law.
It is important to examine carefully in each individual case what type of fixed term is involved.
Option 2 (see above) is often abused by landlords: in reality, the tenant has no intention of renting the property on a temporary basis. Instead, the landlord intends to circumvent the rent control law and actually wants to rent the apartment to the tenant for a longer period at a much higher price. Such abuse can be countered with legal expertise, so that a reduction in rent is often possible even in such cases of abuse.
In the opinion of the courts, abuse can be assumed in any case if the actual rental period exceeds one year. In this case, temporary use can no longer be assumed. It is therefore important to have the fixed-term clause in the contract reviewed by a lawyer.
If the rent cap applies despite the fixed term, the maximum rent for the apartment must first be calculated. The tenant must then notify the landlord in writing that the rent is too high. The landlord must then reduce the rent to the legally compliant amount and, if necessary, refund any excess money paid to the tenant. Since calculating the maximum rent and drafting a complaint requires legal expertise, it is advisable to hire a professional legal service provider for this purpose.
