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The asset manager as broker for commission of a

The peculiarities of the housing agency, I had outlined in my post on 15 February 2011 already. Interesting in this context, a Urtei the local court in Munich from April 29, 2010 - 282 C 33538/09 -:

The asset manager of the apartment owner in arranging the apartment for the brokerage office has taken action. According to the AG Munich relieve the commission is of the broker. For : § 2 para 2, No. 2 WoVermittG (Apartment Services Act) expressly excludes a claim for commission if the broker a lease for an apartment provides. The asset manager of the owner was keen to give the apartment to quickly and easily to the highest possible rent. As the real estate agency services of the asset manager had served, it must also be attributed to this self-interest.

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Rent increase after unannounced modernization

The Federal Court (March 2, 2011 - VIII ZR 164/10) has held that a rent increase after modernization measures that were undertaken without prior notice is allowed.

specialist in labor law Dan Fehlberg Elm Street 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Email: buero@anwalt-in-chemnitz.de

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reduction in furnished rented apartments

The Supreme Court (VIII ZR 209/10) has held that a rent reduction due to surface below of more than 10% even at a furnished rented apartment is justified.

specialist in labor law Dan Fehlberg Elm Street 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Mail: buero@anwalt-in-chemnitz.de

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Mitwohnzentrale upon renewal of the lease?

training and career today require a high degree of mobility. Often a stay in a city is only kuzer duration. The demand for furnished apartments short rental period is therefore high. This need is met, among others, letting agencies. These usually offer to pay a commission to the placement of dwellings for a sublease.

Often, problems arise if the tenant's apartment but takes longer than planned and extend the Parties to the duration of the lease. Some letting agencies then make a further commission claim. Thus, in one case to rule on which the district court had Dusseldorf (Dusseldorf AG, WUM 1998.731 f.) investigated the applicant complained about the Mitwohnzentrale a furnished room for the period November 1997 until at least January 1998, but up to June 1998. For the successful placement of a room for the period November to January 1998, the defendant calculated in accordance with its tiered commission table a commission of 55% of the monthly rent. The applicant agreed at the end of the proposed lease with the lease rental of announces end of June 1998 be extended. After the Mitwohnzentrale having learned, it was created in accordance with its commission scale, a new bill in the amount of 120% of monthly rent to be related less the amount already paid is deducted. The foreign student shall pay this amount first, too. But later they regretted this, and they sued for repayment of the amount. Rightly so, the district court of Dusseldorf said. For the renewal of the lease was the Mitwohnzentrale to no commission. The applicant was not in accordance with § 2 WoVermittG to pay a fee to the defendant required, because by that of the defendant held for lease to commission only the existing lease has been extended. Therefore, the defendant under § 812 BGB notify the applicant on the basis of the renewal invoice v. 4 2. 1998 DM 336.37 paid refunded.

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every year is not only the Christ child, but also the carnival. And - most importantly for me -. In the Rose Monday parades also like to be a chocolate bar thrown into the crowd

The Rose Monday parade in 2010 but such a chocolate bar collided with the face of a woman from Cologne. This was because in the face injured and pulled into court. It claimed that the Karvevalsgesellschaft infringed its Verkehrssicherungspflciht. The union of several objects in the direction of a Menschenemge was "not socially normal." In Cologne already, said the District Court (case no 254/10 123 C). This was "socially customary recognized and permitted" and corresponded with a long tradition which compliance is expected by the audience. When moving it is normal that several sweets were thrown simultaneously into the crowd. After all, these are captured! In the opinion of the district court in Cologne, viewers must be on a Carnival Throw To calculate the floats, for lack of attention "hit unexpectedly by two or more objects to be normal size. If that is not wanted, they could eventually either to keep a greater distance, watch the car carefully, see the inside of a building or - stay away completely! Well, enter on the Monday - but otherwise - care of yourself! ;-))

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"It is not the most pious man living in peace ....

... . If it's not the neighbors like "This old saying of Schiller is nowhere so much as in the rent laws Do you know the the co-tenant of the above has laid a new laminate floor Since then, every night the same game.?. He and his partner to come home. "clack ... clack .... ? Clack ... "annoying Could not take off both your shoes when entering the apartment


Do they even said the district court of Hamburg (LG Hamburg of 15 December 2009 - 316 S 9.14 )
. It was reasonable for shoes with hard heels at the apartment entrance door to move out. For entering the noise is not damped floor coverings such as tile and laminate under falling with such shoes in an apartment building, especially an acoustic vulnerable old buildings, not the contractual use of the apartment.

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television in HD quality

be honest: some things I would not see on TV with high resolution. As a quite some illusions can be taken. But so be it: the train is the time to watch TV in HD quality. And so it was only a matter of time before the Federal Court (BGH) was allowed to deal with it:

What was done? A tenant wanted to watch TV in high definition (HDTV). Because this was not to receive different, he brought a satellite dish on his balcony. The landlord was not delighted. He called for having regard to the existing cable to remove the antenna. Rightly so, the Federal Court was located. Although the information needs of Article 5 of the Basic Law (GG) is protected. This need is, however, by using the-air cable television program adequately protected. Under Article 5 of the Basic Law can not claim to derive a reception quality, which was currently still above the ordinary.

BGH, Judgement of 21 September 2010 - VIII ZR 275/09 -

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checklist utility bill

The annual utility bill is one of the militant-prone topics of tenancy. The following check list attempts to provide a first orientation. The statement must be properly formal and material terms.

I. Form of billing

1.Hat the landlord or his representative, the explanation given in text form?
2.Erfolgt a statement of the total cost for individual items
3.Does called the allocation formula and explained?
4.Wird calculated the portion relating to the tenant share of the total costs properly?
5.Werden receive credit for advance payments made by the tenant properly?

II The content of the settlement

first The costs listed

a) Is this for the expenses listed are those which in principle to § § 1.2 BetrKV are fully allocated?
b) its allocation has been agreed in the lease effective?
c) If the direct costs incurred in fact?
d) When the listed costs, the right rental property or the right business entity?
e) If the costs are too high:
aa) Has complied with the Wirtschafltichkeitsgebot?
bb) Have set may cost twice?
cc) If the cost may not apportionable share?

second The allocation formula

a) Was employed in the lease as stated in the settlement of distribution?
b) the scale of distribution has been explained in a comprehensible way?
c) the allocable costs are also under the respective right of distribution has been folded?
d) the result calculated correctly?




third The advance payments

a) Are included in the settlement of all payments the tenant?
b) if the result calculated correctly?

4th The accounting period

a) Has complied with the contractual settlement period exceeding one year?
b) account for the costs actually placed on the approach to this billing period?
c) If opening and closing stocks consistent with the usage-based charges?

III. Exclusion period
If the landlord or his authorized representative settled within one year following the end of the accounting period (§ 556 para 3 sentence 3 BGB )?

As mentioned above, this check list are only the first orientation. In cases of doubt you should consult a lawyer, therefore.

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cuddly warm ....

As someone hired in the mid 90s, a 4-room apartment in Berlin. A room is heated. Three rooms are equipped with stoves, in the bathroom there is an electric heater in the kitchen GAMAT outer wall heater.

Vacant apartments, the landlord has equipped with a gas heating. "I want it too," says the tenants themselves, "I want courteous manner assume the cost of installation." So he asks the landlord to consent to the installation of a gas heating system at their own expense. "No way," says the landlord, "pulling out yet. When can I re-letting after installation of gas heating to achieve a higher rent." So we meet again before the Court. The district court found the plan of the tenant still great. Not so the Berlin Regional Court (Judgement of 21 December 2010-63 S 208/10 -): Of course, could a claim in good faith (§ 242 BGB) exist. This presupposes, however, that the legitimate Interest of the tenant to the modernization of the interest of the landlord at the Substanderhaltung predominate. In addition, the measure would lead to a significant improvement in the quality of life and cause minimal interference with the substance, which can be low-budget also eliminated again. When installing a gas heating system installed but need new panel radiator, power lines changed and cold and hot water pipes are installed again. This was not a "minimal" intervention in the matter dar.

The district court has approved the revision. Let's see if the tenant does not baufreudige but still must build.

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agency fee and right to withdraw

I had already reported elsewhere about the consequences of withdrawal from the contract for the commission. In this connection an interesting decision of the OLG Schleswig ( Oberlandesgericht Schleswig, Judgement of 11.9.2009, Az: 14 U 33/09) :

The contract parties had agreed to a contractual right of withdrawal, which the contract was initially in the balance. In this case, the commission is of the agent is created only when it is clear that the right of withdrawal can not be exercised. The same applies if the purchase agreement under a condition precedent is closed. Such as when the contract is to come only after obtaining a building permit about. If the condition is an effective contract and the commission is earned.





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housing agency and brokerage commission

The Agents law is also in the acquisition of residential premises apply. However, containing the Housing Office Act (WoVermG) Special provisions with respect to the general agent right of the Civil Code (BGB). Thus, the housing mediator may different from the realtor Living rooms offer only if he has to an order from the landlord or other owner (§ 6 paragraph 1 WoVermG).


first Scope
is applicable only when the law apartment leases. Not covered, therefore, the provision of commercial premises. Rooms are either for commercial or private use, it depends on the preponderance of use. proportion of business premises has only minor importance, the Housing Services Act by virtue of § 1 Section 2 WoVermG still apply.

second Commission claim
The apartment broker is pursuant to § 2 para 1 WoVermG a claim to a commission where as a result of his mediation or as a result of his evidence a lease agreement is concluded. It may not, however, be price-linked housing (§ 2 para 3 WoVermG). Unlike other brokers in the law it is forbidden to him advances to agree on his commission, or accepting (§ 2 para 4 WoVermG).

a) commission promises
between the tenants and the broker has to be agreed that the tenant agrees, if successful, to pay the broker a commission. This can happen explicitly or implicitly. The case law makes it regularly enough that the prospective tenant, the activity of the broker having a to be paid a commission to complete.

b) evidence - or brokering
Proof of rent is paid if the prospective tenant may occur due to the information of the agent into concrete negotiations with the landlord. Regular part of it that the tenant's name and address of the landlord be named. Exceptionally, it can be waived if the landlord himself lives in the property or the tenant has no apparent interest in these data. As a broker of the apartment agent will act if the potential on the other party has acted in such a way that a contract is concluded.

c) Causality
The activity of the agent has to complete the rental agreement have been the cause. This condition can still be met even if the brokerage contract was terminated in the meantime. The closer the contract coincides with the activity of the agent, the more likely a presumption of causation.

d) effective principal contractor

necessary precondition for the emergence of the right to commission is to conclude a valid contract. This differs from the content or in terms of staffing of the proposed lease, this is harmless, as long as the apparent target of the principal economic achieved. Regularly, this is a personal deviation at the case when renting instead of the brokerage client of his wife, life partner or his children home. Differs, however, the rent payable by more than 20% of the promised from, the result of the commission to claim a regular basis.

third Exclusion of the right to commission
Are the above conditions, there is basically a Provisonsanspruch of the broker. The law does, however, that in three cases:

• if "continued on the same living quarters of the lease is extended or renewed" (§ 2 para 2, No. 1 WoVermG)
• if the lease is complete with living rooms, the owner, manager, tenant or landlord of the estate agents (§ 2 para 2, No. 2 WoVermG)
• if the lease is complete with living rooms, the owner, manager or landlord is a legal person in which the home agent is involved in legal or business (§ 2 para 2, No. 3 WoVermG) is.

is often problematic in practice, the administrator concept. A distinction is between the property manager, the special property managers of residential properties and residential property managers. While according to the jurisdiction of the property manager and property manager under the Special § 2 para 2 no fall 2 WoVermG, this is not for the WAY-managers. Unlike the former, this is the opinion of the Court not in the camp of the landlord.

4th Specific rules for the commission amount

The Housing Services Act, the amount of the commission is limited to two months' rent plus VAT (§ 3 para 2 sentence 1 WoVermG). Basis of calculation is the net rent, so the costs are not taken into account when calculating the monthly rent. In addition, to the estate agents, no further services, such as some clerical expenses, registration fees or other expenses reimbursements. If the prospective tenant an excessive commission or improper reimbursement of expenses paid, he can claim back the payment (§ 5 para 1 WoVermG conjunction with § 812 BGB). This right shall lapse after three years (§ 195 BGB).

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No reduction in self-induced lack

A on an overdue debt of the tenant of a dwelling against the power company based interruption of power supply (removal of the electricity meter) does not lead to a reduction of rent because of this shortage is attributed to the sphere of the tenant.

This gives the Supreme Court (Case No.: VIII ZR 113/10) annulled a decision of the LG Dresden. A tenant has not paid its electricity, then the current was turned off and the tenant said, because of the absence (no electricity), he could reduce the rent. After a long period of time not paid the full rent, the landlord announced, and rose clearance and action for payment.

has lost the owner before the MLG Dresden, gave the Supreme Court law.

are the main types of decision:

Although the extent was still a lack of housing, as their usability was hampered by the fact that the defendant was able to move without the measuring device has no power of a (new) supplier. This deficiency did not result in a reduction of rent under § 536 BGB. A reduction is impossible, if a defect is attributable to the sphere of the tenant (MünchKomm-BGB/Häublein, 5th edition, § 536 para 32 with further references;. Schmidt-Futterer/Eisenschmid, leases, 9th edition, § 536 BGB Rn . 572). So it is here.

specialist in labor law Dan Fehlberg Elm Street 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Email: buero@anwalt-in-chemnitz.de

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No statement of reasons in notice required

The statement of the reasons for termination of a housing lease is a mere obligation of the landlord
from the breach of the tenant any compensation claims: can be derived (in this case out of court costs of a switched-on lawyer).

the Federal Court decided this on 15.12.2010 (VIII ZR 9 / 10)

specialist in labor law Dan Fehlberg Ulmen Strasse 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Email: buero@anwalt-in-chemnitz.de

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excluding brokerage commissions

The broker after § 652 BGB entitled to commission if his evidence by or through his proof of purchase or lease of a property is concluded. This is not unconditional. This principle finds by law and case law under certain conditions laid down restrictions. This is especially true for the housing agency. Then
(§ 2 paragraph 2 WoVermG ) is the home agent is not entitled to commission when

1.durch the lease is a hire continued through the same living spaces, extended or renewed;
2.the lease is completed over dwellings , whose owner, manager, tenant or landlord, the estate agents, or
3.the lease is completed over dwellings whose owners, managers and landlords is a legal person in which the home agent is involved in legal or economic. The same applies if a natural person or legal owner, administrator or landlord of residential premises, and involved themselves in a legal person acts as estate agents, legally or economically. Specifically, here is

much disputed. For example, the TRAIL-manager, is this for the mediation of a commission to rent housing demand could ease one reads the legislation, you get to this view, therefore, represented the past, much of the Court's view? that TRAIL-general manager of the persons are authorized to ask for a housing agency no commission (so even LG Heilbronn 5 C 3373/98, ZMR 1998, 40). Meanwhile but the Supreme Court (Az: III ZR 299/02) decided thata manager of residential property is entitled to offer apartments or offices of the managed object from him and to claim commission.

Harmful commission it is, but if the agent with the owner, manager or landlord is legally or economically connected closely. In practice, not so rare: The spouse of the landlord is the brokerage firm or employee of the broker at the same time administrator of the Mietwohnung.Oder is: because of which may be required by the previously occupied apartment tenants further mediating any commission: not in the lease Related friend the tenant vermakelt the apartment: It depends on whether the broker himself lives in the apartment (. LG Bonn - Akz 5S22/97).
Even more than elsewhere in the Agency Law gitl Grudnsatz that the broker should not be slightest doubt on its independence. Otherwise he threatens that he is the manager treated, which a commission claim is barred from housing agency (such as AG, Bad Neuenahr-Ahrweiler, Judgement of 19 August 1998, Az: 3 C 218/98, in: WUM 1999, 47 ). Be threatened loss to the broker's commission if he maintains his office in the premises of a property management company and this works sometimes (AG Charlottenburg, Judgement of 26 September 1989, Az: 16b C 205/89, in: MM 1990, 97) Or even if the broker for the property manager receives mail and phone calls. AG Charlottenburg, Judgement of 29 January 1990, Az: 10 C 401/89, in: MM 1991, 195

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Mieterhöhungsverlangen without signature effectively

After ruling on the merits (November 10, 2010 - VIII ZR 300/09) a rent increase request without a signature is effective, even if it is determined in the lease that require changes and additions to the rental agreement in writing.

specialist in labor law Dan Fehlberg Elm Street 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Email: buero@anwalt-in-chemnitz.de

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In the old tradition: the weekend a joke

The witness of a Schlägerrei be heard at the trial:
"They are carpenters, is not it?"

"They have near the place where the beating took place just worked?" "Yes."
"Yes."

"How far away they were from the beating?"
"35.43 feet, Mr. President!"
"How can you say exactly?"
"Well, because I measured it! I 'I immediately thought, it can fool the court' ask me then."

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skull in the window

The district court of Chemnitz has under the file number: 13 C 1010/10 on 12/20/2010 a tenant to remove a skull image in the window of his apartment condemned.

has also been condemned by the tenant even to replace any damage, if tenants why not rent apartments in the house. It does not matter whether it is the skull image to see a flag is that young people today use a lot. It is crucial that an aesthetic effect is given by the representation. The skull flag is not a normal expression of life of a tenant and falls on the general impression of the facade. The landlord must not tolerate such an infringement of his property. According to § 280, 553 BGB, the tenant beyond even obliged to reimburse the landlord the damage that is caused by the fact that two of the apartment tenants have not been rented.

specialist in labor law Dan Fehlberg Elm Street 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Email: buero@anwalt-in-chemnitz.de

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law and justice have always get two different things.

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rent and public support

The Supreme Court had to decide a case from Berlin (19.1.2011 - VIII ZR 87/10) in which it the effectiveness of a rent increase request is when the living room was previously modernized with public funds or maintained. According

is the effectiveness of a rent increase request does not require that the landlord obtained indicating public support for raising funds in the request, if this after the material have been granted in the funding contract indicated the promotion is intended solely for rehabilitation activities. The disclosure requirement the landlord should ensure that the tenant can check the permission of the rent increase request with regard to the recognition of grants. According to § 558 BGB in conjunction with § 559a para 5 para 1 Civil Code, however, were only the cost of modernization, which are covered by grants from public budgets, the calculation of the increased rent will be charged, but not the costs for repair work.

specialist in labor law Dan Fehlberg Elm Street 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Email: buero@anwalt-in-chemnitz.de

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off is because of missing charge settlement

Once again, the court had to come on and adopted the following guiding principle (12/09/2010 - VIII ZR 285/09) :

power of the tenant's claim against the landlord for repayment of any advances on operating costs over which the landlord is not within the period specified in § 556 para 3 sentence 2 BGB settled has, by way of set-off claim, the effect of offsetting deleted ex nunc, if the landlord subsequently granted an effective utility bill and the tenant thereafter operating costs owed (the continuation of the Senate's ruling of 9 March 2005 - VIII ZR 57/04, NJW 2005, 1499).

is interesting but also to design items of a charge settlement:

of legal error however, influenced the opinion of the Court of Beru-added, on the 10th of the applicant December 2007 submitted cost statements were in all positions with formal requirements.
(1) decisive for the formal validity of a Betriebskostenabrech-tion is the traceability and auditability for the tenant. Necessary but also sufficient, it can show that the tenant he imputed costs are already out of the settlement can be seen clearly and check, so that the inspection required for existing reserves only to control and eliminate doubt is (Senate Judgement of 16 September 2009 - VIII ZR 346/08, NJW 2009, 3575 para 6).. The transparency of the billing for the tenant is assured even if the landlord with no breakdown in individuals closely associated costs summarized in one sum. Such a narrow context, the Senate, for example, for the costs of fresh and waste water - yes, and for property and liability insurance (Senate judgments of 15 July 2009 - - as far as the latter are calculated on the basis of the fresh water reference VIII ZR 340/08, NJW RR-2009, 1383 para 18, of 16 September 2009 - VIII ZR 346/08, supra para 7)...

(2) In case of dispute, the plaintiff in its on 10 December 2007 during the process of operating costs presented for the years 2003 to 2005, including the costs "Water-supply and electricity" and "street cleaning / waste disposal / chimney cleaning" each combined into one total. The revision is right to criticize that the hereby requested to close connection at least for the post water supply and power house as well as missing for the operating costs related to street cleaning / waste disposal on the one hand and chimney cleaning on the other. A summary of these positions, which according to § 2 para 1 no 2/no. 3 (water supply), 11 (lighting), No. 8 (street cleaning / waste disposal), 12 (chimney cleaning) BetrKV form separate cost categories, it allows the tenant not more, at least, a plausibility control of the make scheduled amounts. The same applies if the utility bill 2003, the cost for "caretaker" (§ 2 para 2 No 14 BetrKV) and "cleaning" (§ 2 para 1 No 9 BetrKV) and in the utility bill 2004, the cost of "caretaker "," cleaning "and" gardening "(§ 2 para 1 No. 10 BetrKV) were concentrated in one position. For an objective reason for this is neither argued nor shown.

Contrary to what the revision is unacceptable in these items cost summary however, does not invalidate the entire settlement. The ineffectiveness relates to the jurisdiction of the Senate rather only the permitted aggregate Kostenpo-positions (Senate decision of 14 February 2007 - VIII ZR 1 / 06, NJW 2007, 1059 para 11 with further references.).

specialist in labor law Dan Fehlberg Elm Street 42 09112 Chemnitz Tel: 0371-355900 Fax: 0371-3559020 Email: buero@anwalt-in-chemnitz.de