Damage deposit

The rent deposit, colloquially deposit, is the power of a sum of money by the tenant to his landlord to secure arising from the tenancy claims of the lessor ( rent, utilities and repair services upon termination of the lease, compensation for use, damages, legal costs refund claims ). In preisgebundenem living room only hedging of claims arising from failure to cosmetic repairs and damages allowed (§ 9 paragraph 5, sentence 1 WoBindG ).

Legal framework

The tenant is indeed not legally obliged to pay a rent deposit, but it is generally agreed. Ineffective such an agreement is acc. § 1, paragraph 3, § 16 new rental Regulation ( NMV ) only for homes that have been funded with housing assistance funds for public servants. Failure to pay the rent deposit, the landlord can not, therefore, immediately terminate the tenancy. He must make the rent deposit in court.

According to the tenancy, the following are legal restrictions on housing at the determination of the rent deposit to be considered:

Exceptions

These statutory provisions do not apply to commercial tenancies. In this case, the security between tenants can be freely negotiated. Both the amount of the security deposit, and the interest rate can be chosen freely. If not explicitly stated a non- interest on the rent deposit in the contract, it must be remunerated.

Types and amount of security

A rent deposit (generic term ) can be made in different ways depending on the agreement between the parties. The (cash) deposit come into consideration, pledge, assignment, pledge and deposit policy. The different types can be mixed. It should be noted that the total amount of the rent deposit in accordance with § 551 paragraph 1 sentence 1 BGB in living room three times the amounts attributable to a basic monthly rent - without designated as a lump sum or as an advance operating costs - may not exceed, even not when various securities are used ( cumulation ).

Cash Deposit

A cash deposit is agreed, if the lessee has an obligation under the lease, the landlord to pass a certain amount of money or credit to a landlord account. This is the most commonly agreed rent deposit because of the convenient handling. However, the deposit is not protected against abuse by the landlord, ask the landlord also in practice hardly any interest certificate from, so also accrues interest income tax on the already very low interest rates a savings account.

Pledge

Rent deposit by pledging can be agreed about by the common pledge of savings assets, but also, for example, securities or other investments such as daily bond or a savings contract can be pledged. The pledging of savings assets, the tenant pays the amount of the rent deposit on a denominated in him savings account. Then he pledged his right to demand savings to the landlord. Conditions continue to be the consensus of the parties about the formation of a rem lien of the landlord to the savings requirement (and not only a contractual legal authorization ) and the display of the pledge over the bank. It should be noted that the pledge of postal savings books gem. § 23 paragraph 4 sentence 2 of the Postal Act A. F. was inadmissible.

Assignment of security

Alternatively, according to a savings requirement. § § 398 ff BGB sicherungsabgetreten to the landlord. This requires no display to the bank is required.

Guarantee

The rental guarantee to third parties, in particular credit institutions guarantee under the guarantee facility and insurance within the Deposit Insurance to stand up for fulfilling the obligations of the lessee of a lease. The rental guarantee is a guarantee which may be issued in the form of both commercial banks and insurance companies as well as by third parties. The acquisition of warranties of any kind by credit institutions is a banking business in accordance with § 1 No. 8 of the German Banking Act ( rental payment guarantee ).

As part of the rental guarantee (less frequently: rental guarantee ) undertake guarantor to vouch for the liabilities resulting from the tenancy of the tenant in accordance with § 551 BGB (for rent ). If the rental guarantee over commercially neither banks nor by insurance companies, but by the third non-banks, we speak of a living guarantee. This was offered in December 2008 for the first time by the " German deposit Checkout ". In practice, there are also two further, in particular sponsor. In the commercial sector take over within a group parent companies for their subsidiaries and in the private sector relatives if the creditworthiness of the actual tenant is not sufficient, the rental guarantee. In this case, however, also attacks the legal limit of safety, because the landlord may not have both a guarantee and a cash deposit demand ( cumulative ban). An exception applies, however, if a third party provides a guarantee to allow a lease ever comes about.

Basically, for tenants and landlords contractual freedom in the individual design of a guarantee. Take into account the guarantee conditions, both the legal requirements of tenancy, the individual tenancy conditions and the conditions of the guarantor. Among the recognized typical guarantee conditions include in particular:

• The guarantor shall not consider the case the guarantee is,
• Affordability of the guarantee on first demand (ie the landlord does not have to prove that the tenant has arrears )
• The payment will be made immediately after the due date.

The rental payment guarantee saves the tenant liquidity and enables them to free use of its cash, instead of this deposit as a rent deposit. Directions For their effort and especially for its credit risk, the banks a guarantee commission.

Deposit Police or Security Deposit Insurance

Main article: Deposit Insurance

A deposit policy or deposit insurance is an insurance contract, the contract is a rent deposit to secure a lease. Against an annual payment of an insurance premium frees the lessee from the usual deposit of a security deposit to a deposit or savings account. The amount of the rent deposit is limited to three times the net rent and is noted in the deposit policy. As an instrument of a contract between the insurer and the tenant, the deposit policy shall be deposited with the landlord and is regarded as proof of existing insurance coverage.

Ends the tenancy without the landlord makes any claims for damages arising from the tenancy claims that the cover is canceled again. Should the landlord, however, make a claim for payment of the deposit claimed that the landlord gets his money as a guarantee of payment of the insurance benefit, which in turn requires the leaseholder to any contractual repayment of the deposit sum.

The security policy is not subject to seizure and protects the rights of the landlord against a possible according to current legal seizure of a deposit account by third party creditors. For the owner, this means that he can enforce his claims to payments from rent arrears, repairs or no side reimbursements regardless of claims by third parties.

Requirement for a deposit policy is a sufficient credit rating. For the security policy, the tenant pays an annual insurance premium. Does the tenant's security deposit, however, even on and invests it in securities, for example, he pledged to owner ( see above under " pledge " ), the profits realized from the security deposit to the tenant.

Deposit

The statutory lien of the landlord to be brought into the apartment the tenant matters does not apply until the deposited rent deposit to pay the rent receivables is not sufficient ( § 562 ff BGB). The subsidiary landlord lien by operation of law and is therefore considered since the beginning of the lease, without the need to become effective a special agreement in the lease.

Time the service is

Even if the tenant and landlord expressly agreed when signing a lease that the rent deposit must be provided in full at the beginning of the lease, the tenant has the right to make the security in three monthly installments. This was decided by the district court Lüneburg. The Lüneburg judges gave to the creation of the statutory provision in § 551 paragraph 2 sentence 1 BGB, which enables the tenant an installment payment, is mandatory and can not therefore be circumvented by agreement. The tenant must therefore make the first installment at the beginning of the lease and the two following installments over the following months.

The contractually agreed deposit must - regardless of whether or cash deposit pledged savings account - to be paid in three monthly installments. Otherwise contract agreements are not valid.

After a minority opinion, the failure to pay the deposit entitle the landlord to terminate without notice due to culpable breach of contract. This is true but to the owner of housing according to prevailing opinion not to. Generally accepted is the possibility of termination for landlords of commercial space.

A clause in the lease agreement under which the amount of the deposit must be paid at once is ineffective.

The tenancy agreement agreed claim of the landlord to pay the rent deposit ( deposit) is subject, like all claims, statute of limitations. Decisive rule statute of limitations of three years is acc. § 195 BGB, which begins after 1 BGB § 199 paragraph to the end of the year in which the claim arose. The period of limitation does not begin with the expiration of the lease.

Time of repayment

With the termination of the lease, the basic claim of the tenant for repayment of rent deposit arises if a payment is not contrary to contractual claims of the lessor; this, the lessor shall be made within a reasonable time and to claim it. It is assumed as reasonable a period of 3 to 6 months, are still operating costs, it can also apply to be considered for this year. In a living room rental the deposit to secure claims against the landlord caused by the tenant damages or to secure the expenses for deferred cosmetic repairs can be used. Anticipated additional claims to the tenant, arising from outstanding bills for operating costs, may also justify the withholding of a portion of the deposit.

Otherwise, the rental security deposit including the carried interest is paid back to the tenant.