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Modernisation
Flats in older buildings are becoming increasingly popular. This fact and the state-funded subsidies are making it attractive for owners to modernise their homes again. Entire streets have regained their former splendour in recent years. However, a lot of affordable living space has been lost as a result. This is because some of the costs incurred can be passed on to tenants. And that means an increase in rent.
Residents of old buildings should therefore know their rights and obligations in the event of modernisation. The earlier, the better. Because those who know can react quickly.
What is modernisation?
First of all, a distinction must be made between ‘modernisation’ and ‘maintenance measures’. The latter are not apportionable. The costs for repairs to heating systems, water pipes or installation items as well as the replacement of rotten windows are borne solely by the landlord. Only the difference between the cost of the insulated windows and the cost of the repair may be apportioned. Only measures that sustainably increase the utility value of the flat (e.g. bathroom installation) or permanently improve the living conditions are considered modernisation. This also includes energy-saving measures.
For example, enlarging a bathroom at the expense of a separate toilet is not a modernisation that justifies a rent increase. This is not an improvement in the quality of living, but rather a deterioration. Replacing the sanitary facilities is also not an improvement in the quality of living and therefore not modernisation. This applies all the more if the bathroom was already equipped with a flush-stop device for the toilet system, a single-lever mixer and an air outlet (LG Hamburg 333 S 45/16).
Who has what obligations?
Firstly, the landlord must inform you in writing about the scope and start of the planned work. This must be done three months before the start of the modernisation. Of course, the amount of the future rent should also be stated. The notice period is only waived for minor modernisation work (e.g. installation of security locks).
Apart from cases of hardship, the tenant must tolerate modernisation and measures to save heating energy. The duty to tolerate refers not only to the saving of heating energy, but to all energy savings.
Freedom to build
If the landlord wishes to carry out repairs or renovation work in the tenant's flat, he must also ensure that the tenant's furniture can be assembled and disassembled as necessary. For example, the landlord cannot make the start of renovation work or the removal of moisture and structural damage dependent on the tenant creating ‘construction freedom’, i.e. dismantling furniture in his fully furnished 2-room flat, moving it around, etc. The tenant must tolerate the work. The tenant must tolerate the work, but does not have to co-operate.
‘Modernisation stroke of fate’
Although the tenant is generally obliged to tolerate this, the tenant can exercise their right to object in the event of undue hardship. Unreasonable hardship is generally given if
- the tenant cannot afford the expected rent increase.
- there is a so-called expensive luxury modernisation.
- the tenants have already modernised the flat themselves with the landlord's consent and this work would be rendered obsolete by the planned measures.
- Serious changes are made to the floor plan (e.g. the kitchen is reduced in size by a partition wall in order to install a bathroom).
- the work is to be carried out shortly before the tenant moves out (during the current notice period).
- the tenant cannot be expected to tolerate the noise and dirt caused by the construction work for health reasons.
- it is impossible for the tenant to temporarily move to another flat.
How high can the rent rise?
Before calculating the new rent, the landlord must deduct all costs for repairs that may have been carried out in the course of modernisation. The same applies to any subsidies from public funds. A maximum of 11% of the modernisation costs attributable to the tenant's flat may be passed on to the rent.
The landlord must first send each affected tenant a written declaration of rent increase. This includes all modernisation measures carried out and the individual costs incurred.
The new rent is due from the third month after receipt of the declaration of increase. If the expected rent increase was not communicated before the work began or if it is 10% higher than previously stated, the due date of the new rent is postponed by six months.
Who pays in the event of damage
If the tenant incurs costs as a result of the modernisation (e.g. carpet cleaning, damage to furniture, etc.), the landlord must reimburse these costs. If the flat cannot be used or can only be used partially due to the work, the tenant can charge the landlord for the storage of furniture and hotel accommodation. In such cases, however, the tenant is obliged to keep the costs as low as possible. At the tenant's request, the landlord must make an advance payment for any costs incurred. However, the landlord can also provide suitable alternative accommodation for the duration of the work.
If it is not necessary to move, but the flat can only be used to a limited extent and the tenant is exposed to considerable noise and dirt nuisance, the rent can be reduced accordingly.
Further information can also be found in the ‘Modernisation’ guide from the German Tenants' Association.