Securing the apartment despite renting debts?!

 

Rent and fuel bills should have top priority! Paying rent is more important that paying off debts (however much pressure the collection agency may be putting on you....)!

Rent arrears threaten your existence because in the final event you face compulsory eviction and homelessness! It is in your own interests to make sure that rent and fuel bills are paid regularly.

Set up a standing order with your bank or arrange for the employment office or social services department (Sozialamt) to transfer your rent directly to the landlord.

When could I be faced with immediate termination of tenancy because of rent arrears?

Your landlord can terminate your tenancy agreement overnight as soon as the total arrears are equivalent to two months' rent plus ancillary costs (German: "Warmmiete"). The tenancy agreement may even be terminated immediately if in two successive months the total arrears are equivalent to more than one month's "Warmmiete".

The landlord must be in receipt of the rent by the third working day of the month. Any claims for additional payment arising from the statement of ancillary charges for the preceding year do not entitle the landlord to terminate the agreement without notice.

Does the immediate termination of the tenancy agreement have to be in a specific form?

The tenancy agreement must be terminated in writing. The letter of termination must be sent to all tenants, and the reason for the termination must be stated (e.g. „immediate termination of the tenancy agreement due to rent arrears totalling....").

Immediate termination ends the tenancy agreement immediately unless a period of grace was granted in the letter of termination. If you continue to use the accommodation after this time, you are liable to pay an amount for the use which must be at least the same as the rent

Sometimes termination without notice may be due and proper. In this case, even if rent arrears are paid, the due and proper notice is still effective and you have to move out if the landlord insists.

 

Termination without notice if deposit is not paid?

Tenancy agreements entered into from May 2013 can be terminated without no-tice on the grounds that a deposit has not been paid, if you are at least two months in arrears with the net "cold" rent. The maximum amount for the deposit is three months' "cold" rent. You may pay the deposit in three instalments (within the first three months): Example: The agreement starts on 1 January. The rent is € 500. The deposit is therefore limited to € 1,500 and can be paid in three instalments of € 500 (in addition to the rent) between January and March. If the instalments in February and March are not paid, the tenancy agreement may be terminated without notice.

 

Termination subject to notice (due and proper termination)

Remember: We have already explained above how much you have to be in arrears with rent so that the landlord is entitled to terminate the tenancy without notice. This limit does not apply in this case.

If in the past you have paid the rent irregularly, late or not fully, the landlord may terminate the tenancy agreement subject to notice. In the letter of notice a date will be set on which the tenancy agreement ends.

How can you prevent the landlord from terminating the tenancy?

If you can no longer pay your rent punctually, you should inform your landlord immediately. Explain to him why you cannot pay your rent at the moment. Many landlords will show understanding and allow you a payment respite if they can see that payments will be made in future.

Examples: Apply for housing benefit; arrange sub-tenants (if the landlord agrees).

If your rent arrears have reached the "critical limit" of two months' rent (or more than one month's rent in two successive months, then the landlord loses his right to terminate the tenancy if you pay the entire arrears before receiving written no-tice of termination.

Possible sources of money: Employer loan; support from relatives; loan from housing pro-tection office (Wohnungssicherungsstelle) at the social services department (Sozialamt).

What can you do if your tenancy has been terminated and an eviction or-der has been applied for?

If your landlord has applied to the court for an eviction order, you may be or-dered to vacate the premises and become homeless. You should apply immedi-ately to the social services department (e.g. the housing protection office (Woh-nungssicherungsstelle)) in your town or rural district. Apply for a loan to cover rent arrears (Übernahme der Mietschulden als Darlehen). The legal basis for this is Book XII, § 36 of the German Social Code.

The department will check whether you will be able to pay the rent yourself in fu-ture and also whether the rent amount is acceptable (if you receive social bene-fits).

If you draw unemployment benefit II (Hartz IV), you should inform your personal advisor at the employment office or job centre about the eviction order and apply for them to as-sume your arrears in the form of a loan (repeatedly if necessary). The legal basis for this is § 22 8 of Book II of the German Social Code. In order to pay back the loan, 10% of your future standard unemployment II benefits will be automatically deducted (Book II, §42a (2) of the German Social Code).

 

Remember:

Tell the court (and your landlord) that you have applied for a loan to cover rent arrears. Always quote the case number of the eviction order. Always reply to all enquiries from the court punctually!

If another person or department assumes the rent arrears in time (i.e. all rent arrears and any payments for use of the accommodation are paid in full), the immediate termination of the tenancy becomes ineffective and the old tenancy agreement enters in force again.

If you pay back the arrears yourself, please remember: If your landlord has also, by way of precaution, terminated the tenancy agreement with due and proper notice, this notice of termination remains effective even if you pay back the arrears. In this case you must conclude a new tenancy agreement with your landlord or move out.

Remember:

The landlord must be in receipt of payment (or alternatively the declaration from the department that they will assume the rent arrears) within two months! The period begins on the date the eviction notice is served on you.

If the department refuses to assume the rent arrears, you may lodge an objec-tion to the letter of refusal. In case of dispute you should also contact a citizens advice bureau or a debt advice bureau for help or seek legal advice from a lawyer specialising in social law (obtain a counselling services certificate first (Beratungshilfeschein).

Eviction action with collateral security

At the same time as applying for an eviction order, your landlord may also re-quest that you provide collateral security for the continued use of the accommo-dation (e.g. money or a guarantee). If you do not comply with this court order, the landlord may obtain a temporary injunction very quickly, forcing you to va-cate the premises.

What can you do if the eviction order has been issued?

If you need time to look for new accommodation, you should apply to the court for a reasonable vacation period. Vacation periods (generally an initial 3 months) may be extended if you apply in good time (2 weeks before the period expires).

The compulsory eviction by the bailiff (Gerichtsvollzieher) using a transport company and locksmith should be avoided since the costs (which the landlord has to put up in advance) are very high. Many landlords will still be willing to negoti-ate even at this stage and allow you to move out voluntarily. Your landlord may also merely order you (and your fellow occupants) to leave the premises. He can keep your furniture himself (to save costs).

 

Valuable items may be auctioned after one month. Objects of no value may be destroyed (including personal documents!). However, you are entitled to ask for objects and personal documents (provided they can-not be attached) to be returned to you within this month. You do not have to pay any-thing for this!

If your situation has improved (e.g. new job) some landlords may be prepared to stop the compulsory eviction and give you a second chance. Even at this stage the social services department may still assume old rent arrears so that there is nothing standing in the way of a new tenancy agreement.