Is the following line in the rental agreement permitted according to BGB 551(2)?

[alma.freya]

Is the following line in the rental agreement permitted according to BGB 551(2)? Even if the contract is signed, is the law no longer effective? Does the tenant have to pay the entire deposit in advance?

I am aware that the rent including operating costs at the start of the rental will be EUR ____ and that a deposit amounting to 3 months' rent (excluding operating costs) must be transferred to the landlord as cash before the keys are handed over.

From the BGB:

(2) If a sum of money is provided as security, the tenant is entitled to three equal monthly instalments . The first partial payment is due at the start of the rental agreement. The further partial payments are due together with the immediately following rental payments.

I assume the contract would be invalid and the tenant would still be able to pay the deposit over 3 months. My concern is the landlord either a) not knowing about this law (incompetence), or b) claiming the contract supersedes it (lying) and withholds the keys until the entire deposit is paid upfront. Then we get in to lawyer & local court territory and at this point I wouldn't want this person as my landlord anyway.

[Robinson100]

My concern is the landlord either a) not knowing about this law (incompetence), or b) claiming the contract supersedes it (lying) and withholds the keys until the entire deposit is paid upfront. Then we get in to lawyer & local court territory and at this point I wouldn't want this person as my landlord anyway.

I would suggest that while large companies, who only rent out accommodation, would know of this, a single person, who only rents out one property, might not.
Certainly, in the second case, this person does not have to rent anything out to you, and your assumption of "incompetence" would not go down well at all!
If you are happy to sign a rental agreement and abide by what is set out in the contract, then please do so; if not, then you either have the option of not renting the property, or of talking to the landlord/lady........
Going in with all whistles blazing and threatening legal proceedings will not make you appear to be the ideal tenant!!!

[alma.freya]

My concern is the landlord either a) not knowing about this law (incompetence), or b) claiming the contract supersedes it (lying) and withholds the keys until the entire deposit is paid upfront. Then we get in to lawyer & local court territory and at this point I wouldn't want this person as my landlord anyway.

I would suggest that while large companies, who only rent out accommodation, would know of this, a single person, who only rents out one property, might not.
Certainly, in the second case, this person does not have to rent anything out to you, and your assumption of "incompetence" would not go down well at all!
If you are happy to sign a rental agreement and abide by what is set out in the contract, then please do so; if not, then you either have the option of not renting the property, or of talking to the landlord/lady........
Going in with all whistles blazing and threatening legal proceedings will not make you appear to be the ideal tenant!!!

I know guns blaze, but do whistles? I suppose if you blow them long and hard enough. I appreciate your recommendation of approaching the topic with them diplomaticly.

The building is owned by a publicly listed company and managed by a local Hausverwaltung. I think there are 2 options:

1. Sign the contract and when we do the key handover, tell them I'll pay the deposit over 3 months (as is my right).
2. Discuss paying the deposit over 3 months (as is my right) before signing the contract and see how they respond.

[Franklan]

1. Sign the contract and when we do the key handover, tell them I'll pay the deposit over 3 months (as is my right).
2. Discuss paying the deposit over 3 months (as is my right) before signing the contract and see how they respond.

comment to 1.: The landlord will not hand over the key before the deposit is there.
comment to 2.: The landlord will then refrain from having you as a business partner and find someone else.

While you are right concerning the law and you could try enforcing your right with a lawsuit, the landlord has the longer lever in his hand:
He/She has a flat that you want, but he/she could also let to somebody else.

https://www.mietrecht.org/mietkaution/m ... en-zahlen/

[alma.freya]

1. Sign the contract and when we do the key handover, tell them I'll pay the deposit over 3 months (as is my right).
2. Discuss paying the deposit over 3 months (as is my right) before signing the contract and see how they respond.

comment to 1.: The landlord will not hand over the key before the deposit is there.
comment to 2.: They landlord will then refrain from having you as a business partner and find someone else.

While you are right concerning the law and you could try enforcing your right with a lawsuit, the landlord has the longer lever in his hand:

He/She has a flat that you want, but could also let to somebody else.

https://www.mietrecht.org/mietkaution/m ... en-zahlen/

Thanks for your thoughts Franklan. You are right that given the current market, landlords are the ones with the leverage. I think it needs to be discussed before the contract is signed, and then either walk away or bite the bullet.

Unrelated, but has there been any discussion in Germany regarding tenancy deposit protection schemes? These have been available in the UK since 2007 because there were many instances of landlords unfairly keeping deposits at the end of a tenancy.

Reasons for introduction

It is common for landlords to take a dilapidation deposit from a tenant at the start of the tenancy. The deposit acts as a safeguard should the tenant cause any damage to the property. Some unscrupulous landlords are either very slow to return deposits at the end of the tenancy or make unfair deductions. The purpose of the regulations is to ensure good practice in this area, and try to keep disputes between landlords and tenants out of the courts by encouraging alternative dispute resolution. However, tenants and landlords still need to be ready to escalate matters to the deposit protection scheme after the tenancy has ended if agreement is not reached quickly, otherwise waiting too long can mean they lose access to the scheme's impartial adjudication service.

[Franklan]

I think it needs to be discussed before the contract is signed, and then either walk away or bite the bullet.

As soon as the landlord has doubts about your financial situation, he/she is the one to walk away! You will then no longer be able to bite the bullet because the offer gets withdrawn!

Keep in mind that life never gives you a second chance for the first impression. From a landlord's perspective, this is especially true when it comes to the impression of financial reliability.

Again, yes, you have a lever in your hand, but his/her lever is way longer.

[Fraufruit]

Keep in mind that landlords have to protect themselves from Mietnomaden. The first thing a Mietnomad does is try to negotiate the deposit payments. That is a red flag for landlords.

[Robinson100]

Just want to mention that, as a landlady, anybody who cannot afford to pay the deposit in one go is like a red flag.
If that person cannot afford the deposit, will s/he be able to pay the rent on time on a continual basis ?

[Alberto]

Does the tenant have to pay the entire deposit in advance?

Guys, I'm surprised even that such questions get asked at all !!

[alma.freya]

Does the tenant have to pay the entire deposit in advance?

Guys, I'm surprised even that such questions get asked at all !!

Yes, perhaps it was silly to ask considering the answer is clearly: no, BGB 551(2) still applies regardless of what is written in the contract.

In my current contract is was explicitly noted that I could pay the deposit over the first 3 months, as is allowed by law, which is why I was surprised to see such language in the new contract.

[alma.freya]

Update: Spoke with the landlord and they said of course the deposit can be paid over 3 months, it's allowed by law (my current landlord said the same thing however it was explicitly stated in the contract).

I guess it depends on the landlord, their previous experiences with tenants, and some other factors such as the amount of salary in the past 3 months pay slips (perhaps they are more lenient with higher income individuals), Schufa score etc.

[Fraufruit]

Speaking of salaries, we don't rent out our little studio apartment to people who make too much money because we don't think they will stay in that small place very long. It has worked well over the years.