When it comes to rent deposits, what is allowed and what isn’t? Here are nine interesting facts that tenants should know.
Even the costs of moving to a new apartment often tear a serious hole in the household budget. And then the landlord also asks for a deposit. But does that have to be the case at all? And what else is there to know about the payment that landlords require for any damage during the rental period? These are the general conditions:
Fact 1: A rental deposit is a can, but not a must
A deposit serves as security for the landlord or landlady – either for damage that can be traced back to the tenant or for missing rent payments.
The landlord can demand such security from the tenant, but does not have to. “So the landlord decides for himself whether he asks the tenant for a deposit or not,” says Julia Wagner from the House Owners’ Association
Fact 2: Three months’ rent is the maximum
According to the German Civil Code, the security deposit may amount to a maximum of three months’ rent. The advance payment for additional costs is not included in the calculation of the deposit. So if the basic rent is 830 euros and the warm rent is 990 euros, the deposit may not exceed 2490 euros.
If the rent increases, the landlord is not entitled to demand a higher deposit. The security deposit remains as high as at the beginning of the tenancy.
Fact 3: Installment payments are also possible
Paying a deposit to the landlady in one go can be a heavy financial burden for tenants. But installment payments are generally conceivable. “The tenant can pay the deposit in three equal installments,” says Julia Wagner. The first installment is due at the beginning of the tenancy. The other partial payments are due with the immediately following rent payments.
Fact 4: The landlord invests the deposit given to him
According to the law, the landlord or landlady must deposit the deposit given to him or her with a bank with a three-month notice period and at the usual interest rate. The parties can agree on other forms of investment – the only requirement: the landlord must keep the investment separate from private assets. Which type of account he or she chooses for this is up to him or her.
“In the past, explicit rental deposit accounts were often chosen, which the tenants often even open themselves, but then pledge to the landlord and hand over the savings book,” says Wagner. But the trustee-managed rent deposit savings account in the tenant’s name is also a popular alternative. “It is best for landlords to find out from their bank in advance which options are available and whether they will incur any costs,” says Wagner.
Fact 5: During the tenancy, the deposit remains untouched
“During the current tenancy, the landlord may not access the deposit for disputed claims,” ??says Julia Wagner. The landlord can only settle these debts from the rental deposit if there is damage at the end of the tenancy or rent payments are outstanding. Once the landlord has created the account, he can easily access the account.
If a savings account has been pledged to him, it is a bit more difficult, since the tenant often has to agree to the landlord accessing it. “If he does not give his consent without justification, the worst case scenario is that the landlord has to sue him for consent,” says Wagner.
Fact 6: The tenant is entitled to interest on a rental deposit
“The tenant is entitled to the interest,” says Rolf Janßen from the DMB tenant protection association in Frankfurt am Main. So he doesn’t have to share it with the landlord. After moving out, the tenant should request the deposit and interest be returned in writing.
Fact 7: The landlord can take his time with the repayment
There is no statutory settlement period for the deposit. “As a rule, the landlord has to repay the deposit no later than six months after the apartment has been returned,” says Janssen, referring to a judgment by the Celle Higher Regional Court (Az.: 2 U 223/01).
In individual cases, the billing period can also be longer. This is the case, for example, if additional ancillary cost claims exist from the current year; such costs are not settled until the following year. “In these cases, the landlord is usually only allowed to withhold a reasonable part of the deposit,” says Janßen. At least that’s what the Federal Court of Justice decided in 2006 (Az.: VIII ZR 71/05).
Fact 8: Landlords must prove possible damage to tenants
Landlords can only withhold part of the deposit for damage if the tenant is culpable for causing the damage. The landlady must explain and prove this. If an out-of-court clarification of this is not possible, according to Janßen, it should be clarified in court how much money the landlord may withhold from the deposit.
Fact 9: Normal signs of use are not at the expense of the tenant
Normal signs of use and wear and tear are no reason for the landlord to withhold money from the deposit. “Normal signs of wear and tear usually include color differences on the walls after pictures have been removed, as well as slight scratches on floor coverings,” says Janßen.
His tip: In order to clarify in advance whether it is normal wear and tear or additional damage, it can make sense to arrange for a check by the liability insurance company before you move out.
