DE: Rent repayment claims assignable to debt collection agencies?

Jun 10, 2022 Benn-Ibler Rechtsanwälte

It is covered by the authority of a debt collection service provider under the Legal Services Act (Rechtsdienstleistungsgesetz) if he is commissioned, on the one hand, to reclaim the rent from the landlord and, on the other hand, to request the landlord to no longer demand the rent that has been complained of as excessive and to reduce it to the maximum permissible amount.

In the case at hand, a debt collection service provider sued on the basis of assigned rights for claims of a tenant for violation of the limitation of the amount of rent. The action sought information and rent repayment under the Berlin Rent Limitation Regulation (Berliner Mietenbegrenzungsverordnung) in conjunction with Section 556d of the German Civil Code (Bürgerliches Gesetzbuch). Via the website operated by him, the debt collector offers residential tenants, among other things, the possibility to commission him with the extrajudicial enforcement of claims as well as possible declaratory relief against their landlord by clicking on a button "commission rent reduction" ("Mietsenkung beauftragen").

In the view of the Regional Court, this constituted an infringement of the authority to collect debts. With the  online offer, the plaintiff exceeded the authority to provide extrajudicial legal services. In this case, the transgression was the offer to enforce the existing "rent brake" in addition to enforcing any existing rent repayment claims and thus to reduce the contractually agreed rent to the maximum permissible level. Economically, the rent repayment claim was secondary, so that the defence against the claim, which is inadmissible under the Legal Services Act, came to the fore.

The BGH did not share this argumentation. The fact that the company sent a letter of complaint to the landlord requesting him not to charge the tenant the excess rent in the future and to reduce it to the maximum amount allowed did not constitute an inadmissible defence against a claim by the debt collection service provider. It was not a response to a landlord's demand for payment (defence against a claim), but rather a request to recognise the rent repayment claims resulting from the "rent brake" (enforcement of a claim).

BGH, VIII ZR 121/21 (30.03.2022)