What is the rental process of the apartment

Info 179: Process costs - What does the rental process cost

Status: 9/13

The decision of the tenant, whether to enforce a legal claim under tenancy law or not, often depends on the question of whether the risk of litigation costs is acceptable. Nobody can finally predict how a process will ultimately turn out. If the tenant does not have legal protection insurance for rental matters, the risk should be weighed up after thorough legal advice, as - as can be seen below - the costs of a rental process can easily run into the thousands.

This article deals with the following questions:

If there is a legal proceeding due to a difference of opinion between the tenant and the landlord, fees and expenses arise for this.

In addition to its factual decision (e.g. on the justification of a termination or rent increase), the court also makes a decision on who has to bear the costs of the proceedings.

The procedural costs consist of the court costs and the lawyer's fees if one or both parties have hired a lawyer to exercise their rights. The court costs and the lawyer's fees are made up of certain fees. As a rule, three court fees and two and a half legal fees per party are incurred in a first instance trial. If a settlement is reached, there are three and a half legal fees - the court fee is reduced to a simple fee.


Costs for an expert opinion

The court costs only include the costs for an expert opinion commissioned by the court. If an expert had to submit an expert opinion in the process, which is often the case in a dispute about the rent or in a procedure about deficiencies in the apartment to be remedied by the landlord, then the process costs can possibly increase again by an amount between 500 and 2000 euros, as experts are known to be expensive.

An appraisal, on the other hand, which the landlord has commissioned prior to litigation to justify a rent increase request, must be paid by him himself, even if he wins the later process (LG Bremen WuM 84, 114; LG Frankenthal WuM 84, 114; LG Hannover WuM 83, 182).

The amount of court and legal fees depends on the Court Fees Act or according to the Lawyers' Remuneration Act (RVG). It is up to him to decide Value in dispute or object value about the individual cost estimates. On the basis of the determined value in dispute, the court sets the court and legal fees after the end of the process. This then has to be paid by the losing party (§ 91 ZPO).

All you need to do is take a look at the relevant fee tables to estimate in advance which costs could arise in the worst case.

Important: In addition to the court costs, the losing party has to bear the costs of its own lawyer as well as the costs of the opposing lawyer (if lawyers have been used). If a process is partially won, the costs are shared according to the outcome. Example: In the case of a rent increase action, the court awards the landlord 1/3 of the rent increase requested. Then he has to bear 2/3 of the costs, the tenant only 1/3.

Note: The plaintiff must pay three court fees as an advance to the court. Unfortunately, the legal protection insurance of the Berliner Mieterverein e.V. cannot save you from having to advance these advances yourself if you do not want to accept a delay. If you want to sue the landlord, the court will only act if your attorney pays three court fees as an advance with the lawsuit. You will of course receive the amount back from the legal protection insurance on request, as soon as the legal protection has been approved. If you do not want to advance the advance payment, legal protection must be applied for on the basis of the completed application and your lawyer will only file the complaint once the insurance company has issued a cover letter and transferred the advance payment to the attorney's account. Of course, none of this matters if you get sued. Because then the landlord, as the plaintiff, has to pay the advance court costs.

For the costs of applying for a dunning notice, see our Info No. 199.


What does the rental process cost?

The following initial situation was assumed for the table below:

Lawyers are brought in on both sides. The flat rate postage costs of a maximum of 40 euros and 19% VAT are already included in the lawyer's fees. A normal first-instance judgment with justification is issued. In the case of a settlement in court, the attorney's fees are increased by the settlement fee - the court costs are reduced.

The costs for the second instance (appeal) given in the following table are the costs incurred including the first instance.

According to a cautious estimate, which should always be adjusted upwards, the costs for the process total (in euros) approximately:

Dispute and
Object
value
to ... euros
1st instance
without
judicial
comparison
1st instance
With
judicial
comparison
2nd instance
without
judicial
comparison
(Costs incl.
1st instance)
2nd instance
With
judicial
comparison
(Costs incl.
1st instance)
500
1.000
1.500
2.000
3.000
4.000
5.000
6.000
7.000
8.000
9.000
10.000
13.000
16.000
19.000
420
682
944
1.207
1.567
1.928
2.288
2.648
3.009
3.369
3.730
4.090
4.442
4.794
5.145
457
767
1.076
1.386
1.829
2.273
2.717
3.161
3.605
4.049
4.492
4.936
5.345
5.755
6.164
907
1.475
2.042
2.610
3.386
4.162
4.939
5.715
6.491
7.268
8.044
8.820
9.583
10.345
11.107
977
1.616
2.256
2.896
3.792
4.688
5.584
6.480
7.376
8.273
9.169
10.065
10.917
11.770
12.622

The table above does not take into account:

  • Costs for service of procedural documents (e.g. service of legal action)
  • the costs of the taking of evidence itself (e.g. Costs of the expert, Witness compensation, etc.)
  • Foreclosure costs
  • increased legal fees because several clients are represented (these fees increase by 3/10 in the case of a majority of clients in accordance with § 7 RVG, i.e. already when several tenants of an apartment have to be represented in the rental process, as they have all signed the rental agreement together .)
  • Additional costs for attorney's fees, e.g. lifting fee, copying costs, travel expenses, etc.

Second instance (appeal)

Second instance proceedings require a value in dispute of at least 600 euros or the approval of the appeal by the local court. Legal fees increase by about 12%. In the case of court costs, the judgment fee increases from 3 to 4 fees if a judgment is given with justification.


How is the fee dispute value determined?

Terminations (eviction action)
12 Net cold rents (Section 41 (2) sentence 1 GKG); in exceptional cases, when agreeing ancillary costs, these ancillary costs must also be taken into account (Section 41 (2) in conjunction with (1) sentence 2 GKG)
Example: The tenant pays € 650 per month in rent (excluding additional costs). The value in dispute for an eviction action is therefore 12 x 650 euros = 7800 euros.

Object of the tenant to a termination according to the social clause and request for an extension (§§ 574 ff. BGB)
Sum of the rent for the extension period, but no more than 12 times the net rent excluding charges (Section 41 (1) sentence 1 GKG)

Existence or duration of the lease or individual parts of the lease (e.g. attic)
disputed period, a maximum of the annual rent to the extent of the disputed portion (e.g. 1/10 or rent for attic) (Section 41 (1) sentence 1 GKG)

Rent increases
Increase amount multiplied by 12 (Section 41 (5) sentence 1 GKG)
When determining the amount in dispute, an undisputed partial acknowledgment of a rent increase request in favor of the tenant must be taken into account (AG Münster WuM 79, 269).

Rent increases for commercial premises
Increase amount multiplied by 42 (§ 9 ZPO; OLG Brandenburg MM 95, 440)

Maintenance / rectification of defects
monthly reduction amount multiplied by 12 (Section 41 (5) GKG)

Rent reduction
Sum of all reduction amounts, but at least reduction amount multiplied by 12, according to the latest case law reduction amount multiplied by 42

Modernization tolerance suit (§ 555 d Abs. 1 BGB)
Probable modernization surcharge times 12 (Section 41 (5) sentence 1 GKG)

Entitlement to tenant modernization
Based on Section 41 (5) sentence 1 GKG, presumably 12 times the amount of the monthly fictitious rent increase for the measure if the landlord had carried this out.

Maintenance tolerance complaint (Section 555 a (1) BGB)
monthly reduction amount multiplied by 12 (Section 41 (5) sentence 1 GKG

Failure to direct debit
Monthly rent multiplied by 42 (§ 9 ZPO; LG Berlin - 67th ZK - GE 95, 1553)

other payment entitlements (e.g. from utility billing)
amount requested in each case

§ 5 WiStG - right to repayment
amount requested in each case

§ 5 WiStG - lawsuit to determine the maximum allowable rent
Probably controversial in the future: previously alleged excess amount multiplied by 42 (LG Hamburg - 316 S 57/93), now based on § 41 (5) sentence 1 GKG (Hartmann § 41 GKG Rn 37) possibly only 12 times the excess amount.

Cosmetic repairs
Damages claimed in each case (i.e. value of the disputed renovation work)

Preservation of evidence
The fee in dispute for the independent evidence procedure is based on the object value of the main matter (LG Berlin GE 96, 1549)

Admission of partner / subtenant
Probable sublease rent times 42 (§ 9 ZPO; LG Hamburg of 25.8.93 - 316 T 67/92 -)

Omission (e.g. right to omit playing the piano or keeping animals)
free discretion of the court (§ 3 ZPO; LG Berlin - 67th ZK - GE 96, 470)

Lawsuit for utility billing
1/3 of the annual advance payments or the expected reimbursement amount


Examples of fee disputes

Nature of the lawsuit /
Subject of dispute
Value in dispute
calculation
Amount in dispute
in €
fees
RA
(own)
in €fees
RA
(Opposite side)
Court fees
in €
Total cost
1st instance
in €
Performance /
Payment
legal action
The amount in dispute is determined by the amount in disputefor example 3,000.00Procedural approach
wage fee
+ Post
flat rate
+ 19% VAT
502,50
+ 40,00
+ 103,08
= 645,58
645,58315,-1.606,16
Maintenancelegal action12 times the amount of the monthly
Reduction amount; here: stove setting / reduction of 5% of the rent / for example 30, - € for 600, - € rent
30,- €
x 12 = € 360
Procedural approach
wage fee
+ Post
flat rate
+ 19% VAT
112,50
+ 26,75
+ 26,46
= 165,71
165,71105,-436,42
Rental
reduction
42 times the amount of the monthly
Reduction amount;
here: considerable construction noise (even at night) and heavy traffic
pollution / reduction of 25% of the rent / for example 225, - €
at € 900 monthly rent
225,- €
x 42 = € 9,450
Procedural approach
wage fee
+ Post
flat rate
+ 19% VAT
1.395,00
+ 40,00
+ 272,65
= 1.707,65
1.707,65714,-4.129,30
termination12 times the amount of the monthly rent; here: for example € 900 monthly rent900,- €
x 12 =
10.800,- €
Procedural approach
wage fee
+ Post
flat rate
+ 19% VAT
1.510,00
+ 40,00
+ 294,50 = 1.844,50
1.844,50789,-4.478,00

How you can protect yourself against the risk of litigation costs

Because of the high legal costs, many tenants shy away from messing with their landlord in court. In addition, in most cases, even an expert cannot say with certainty how a process will turn out. Anyone who wants to avert the possible financial consequences of judicial clarification of a rental law problem must protect themselves against this. Members of the Berliner Mieterverein e.V. are automatically covered! There is no risk of our members being sentenced to assume the entire costs of the proceedings (“risk of litigation costs”). The contribution, which is paid by the members of the Berlin tenants' association, also finances the costs of a Rental legal protection insurance, which, in the event of a process lost by the tenant, assumes all costs that may arise in the course of the process. Whether the legal protection insurance is obliged to assume the costs in individual cases depends, among other things, on whether or not you joined the Berlin tenants' association in good time before a dispute arises. As with all other legal protection insurances, there is a waiting period of three months with the result that only those disputes are covered that only arise after the waiting period has expired.

Read about this in our extensive
Info No. 159 “Legal protection insurance of the Berliner Mieterverein e.V.”.


Legal aid

If your income is below certain limits, you can contact your lawyer Legal aid (PKH) apply in accordance with §§ 114 ff. ZPO. Every lawyer has appropriate application forms. The PKH application is usually submitted to the competent local judge together with the draft of the application. If the court considers a lawsuit or defense against it to be promising and if the applicant has proven appropriate income, the costs of one's own lawyer may be entirely borne by the state treasury or at least advanced as a loan. If the person who has been granted legal aid by the court nevertheless loses the process, he still has to bear the costs of the opposing lawyer.

Further details are available from our Info No. 168 refer to.


Also read on this topic:

This information sheet is not a substitute for legal advice. It is imperative that you seek legal advice before following the instructions. The BERLINER MIETERVEREIN e.V. is at your disposal.

Berlin tenants' association
29.05.2018