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Security deposit
Your rights and obligations as a tenant. As a rule, the landlord requires the payment of a deposit. This is permitted by law. There is often a fierce dispute about repayment after the tenancy ends. You should therefore be aware of your rights and obligations in this regard.
- Since 1 January 1983, the amount of the security deposit has been limited to a maximum of three months' rent (basic rent).
- The tenant is entitled to pay the deposit in three equal monthly instalments, regardless of what was agreed in the tenancy agreement. The first instalment is only due at the beginning of the tenancy and not, as is often required, at the conclusion of the contract. However, contractual deviations in favour of the tenant are possible.
- The landlord must place the deposit with a savings bank or bank. This must be done separately from his own assets so that the money is not lost in the event of his bankruptcy or insolvency.
- Before tenants agree to the rental deposit being invested in shares or funds, they should be aware that, depending on the performance of the share price, not only are any earnings at risk, but also the deposit itself, i.e. their capital.
- For tenancies that began after 31 December 1982, the landlord is obliged to pay interest on the deposit and to pay all interest and compound interest to the tenant on repayment. The landlord must invest this amount at the usual interest rate for savings deposits with a 3-month notice period; the interest accrues to the tenant and increases the security. With the reform of tenancy law on 1 September 2001, the legislator clarified that this also applies if the money is invested at a higher interest rate. The tenant is also entitled to higher returns.
- The landlord can only claim the deposit if the tenant does not fulfil their obligations under the tenancy agreement. This applies both to rent arrears and to arrears of heating or ancillary costs during the rental period. In this case, the tenant is obliged to replenish the deposit. It is not permitted to withhold rent due and then offset this against the deposit. The tenant must pay the rent until the last month of the rental period.
- After the end of the tenancy, the landlord may deduct any claims from the deposit if they are justified. The landlord must have settled the deposit no later than six months after the end of the tenancy.
- If the landlord pays back the deposit without reservation, he can no longer assert claims for recognisable defects or damage at a later date.
- In the case of social housing, the special rule applies that the landlord cannot - as in privately financed housing - withhold the deposit due to rent or service charge arrears, as the tenant has already paid the rent loss risk included in the rent for such cases.
- If the owner changes during the rental period, you should make sure that the new owner has also received the deposit from their predecessor. According to recent case law, new owners are obliged to repay the deposit to the tenant even if they did not receive it themselves.
- At the end of the tenancy, the current landlord must repay the rental deposit to the tenant - even if he acquired the property in a forced sale and was unable to take over the rental deposit from the previous owner who had become insolvent (BGH XII ZR 13/10).
- The tenant's claim to repayment of the deposit is time-barred after three years. The limitation period begins at the end of the year in which the landlord has to settle the deposit.
Tenant tip
A tenant moved into a rented flat 16 years ago. His landlord waived a deposit at the time. Now he is suddenly asked to pay a deposit of two months' rent. Is he still obliged to do so after such a long tenancy?
No. The landlord can only demand a rental deposit from the tenant if this has been contractually agreed. If a claim to a deposit payment has been contractually agreed, this lapses after three years, starting at the end of the year in which the deposit agreement was made. The parties are of course free to voluntarily conclude a new deposit agreement during the tenancy.