Berlin laws regarding letting of furnished flats

10.03.2024 | | The Temporary Rental Blog | Landlords | Legal matters

Von Christine Kandler

Crocodilian has been marketing and renting out temporary furnished flats in Berlin for over 16 years.
The legal situation regarding renting and temporary living has changed several times over the years and we are in constant contact with our lawyers.
This article is based on our many years of experience and here you will find the important information on the relevant laws about furnished temporary rental. You will find out how these laws are implemented and put into practice. Please note that we are not allowed to give legal advice. Only a lawyer may.

Yes, landlords may rent out furnished for a limited period as long as certain conditions are met and violation of the law on misappropriation is avoided. Temporary letting does not need permission.

No. The rent control does not apply to furnished apartments throughout Germany. Except for Berlin. Here the rent cap applies. So there are different laws for temporary rentals in Germany.

The rent cap is now legally binding, and it also applies to furnished apartments. So landlords have to adjust the basic rent to the rent cap. The rent cap is and remains controversial. Even among those who demand more affordable living space. There is reason to fear that the rent cap will exacerbate the current problems instead of solving them. There is a shortage of flats in Berlin for people with low incomes and for families. The reason for is simple. The Land of Berlin has sold flats and for years too few were built. But the low-income earners do not profit from the rent cap. On the contrary. It is the well-off who live in large flats in the best locations. Luxury flats in excellent locations like Mitte or Prenzlauer Berg will only be slightly more expensive than simple flats in Marzahn-Hellersdorf, because of the rent cap. So much for social justice.
You can find more information on effects of the rent cap for furnished temporary apartments and FAQ - everything about the rent cap for landlords - on the Crocodilian blog for landlords.
Almost all experts assume that the rent cap is unconstitutional and that the Federal Constitutional Court will reclaim it. The rental legislation is a federal, not a state matter, and there is no such thing as a nationwide rent cap. For landlords of temporary flats, this means that the basic rent of your flat may now only be less than 20% above the rent cap as long as the rent cap is in force.Der Mietendeckel ist inzwischen rechtskräftig und er gilt auch für möbliertes Vermieten auf Zeit. Vermieter müssen die Kaltmiete demnach dem Mietendeckel anpassen.

A fixed-term rental contract cannot be terminated before the end of the term, or only if there is an extraordinary reason for termination. For example, if the flat can no longer be used or the tenant can no longer be reasonably expected to use it. This rarely occurs. However, it can happen that the tenant’s plans change, the tenant loses his job, the tenant or a relative falls ill, etc. All these are reasons that justify an early move out. Most landlords should be accommodating and flexible in such a case. It makes little sense to to jeopardise a good tenancy and “force” the tenant to continue renting the flat. If the tenant loses his job, this may not be in the landlord’s interest either. The following is important for the landlord: If your tenant wants to move out before the end of the rental period, contact your agency immediately. Then, the tenant is usually given two months’ notice to the end of the month or continues to pay the tenant until the agency has found a new tenant. The aim is always a win-win situation for tenant and landlord. The tenant should continue to pay the rent only as long as necessary, and the landlord pays the agency fees only once in this case. This is only the case if the new tenant is provided by the same temporary housing agency.

A right of withdrawal according BGB § 312g only exists for tenants who rent a flat from a commercial landlord. Private landlords - and these are 99% of the landlords of Crocodilian - do not have a right of withdrawal in the sense of the BGB. Commercial landlords are e.g. property management companies or landlords with their own office, who rent full-time and make their living from the rental income.

Tenants who rent a flat temporarily must be flexible. Sometimes their project is extended, other tenants need a little longer to find their own unfurnished flat and lots of tenants underestimate the effort involved in finding their own flat. It is always possible to arrange an option to extend with the tenant. We recommend not extending the lease too often if you want to avoid the tenant being able to derive common law from it.

A written tenancy agreement is mandatory for temporary accommodation. Good agencies prepare the lease contract and adapt the details to the respective circumstances. This is important for reasons of time limitation. These must not only be included in the contract, but must also be true.

According to the Federal Registration Act (BMG) §19, the landlord or his authorized allowed representative must cooperate in the registration process. This also applies to temporary letting. As a landlord, you are therefore obliged to issue a landlord’s certificate to your temporary tenant. It does not matter whether you own the flat or if you are a tenant and you rent out the apartment because of temporary absence. The tenant needs the landlord's confirmation to register. This is compulsory for tenants. Especially tenants from abroad need the landlord confirmation immediately upon arrival in Berlin. We recommend that this paper is handed out when the tenant moves in or as soon as the rent and deposit have been transferred. Without a landlord’s confirmation, a tenant cannot open a bank account. Without a bank account in Germany, he cannot transfer the rent, sign up for a Schufa or conclude a mobile phone contract.

Do landlords have to add VAT on the rent of a furnished flat? This question is hard to answer. Some landlords are subject to VAT, others are not. Please clarify whether the letting of your flat is subject to VAT with your tax consultant. Furnished flats that are rented for at least 6 months are not subject to VAT.

Some landlords ask whether temporary letting is legally secure? The answer is simple: there is never any security in life. And the other question is: what does security mean here? Renting out a furnished apartment is no less secure than renting out unfurnished. - rather the contrary. A temporary rental should be uncomplicated for both sides. Therefore, the aim cannot be getting justice in court, if problems should arise. If one party sues the other, both have lost. In court and on the high seas, a man’s fate lies in god’s hands. But who wants to invest time, money and above all nerves in a legal dispute with a tenant? Temporary leases are relatively legally secure, if you have a good tenant. Some agencies advertise with verified tenants., but it is unclear what this means. Ultimately, it only means that the tenant exists. This is only of limited significance for the quality of the tenant. Tenants should be solvent. But not only the financial status is relevant. The tenant himself is even more important. How does a person behave in conversation? Has he prepared himself, read all the information, thinks along and thinks ahead? Does he know what he is getting into? Is he reliable? Are his statements comprehensible? Is he erratic and wants this today and that tomorrow, without giving a comprehensible reason? All this information, when viewed in isolation, may be of little significance for a particular person. But when viewed in context, one can get an idea of the person and problems are already apparent at a very early stage.

The law says: The client pays - the one who ordered the service. This is always the landlord. According to the Bestellerprinzip, the law which came into force in 2015, the agency therefore must charge the landlord for the agency services. The Bestellerprinzip also applies to the procurement of temporary furnished accommodation. The law is binding and cannot be circumvented by individual agreements.

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