Rent increase based on a rent index: Does a kitchen you paid for count?

First paying for the kitchen, then receiving a rent increase

The tenants of a Berlin flat replaced a used fitted kitchen with a new kitchen they paid for themselves, with the landlords’ consent. The landlords later requested a rent increase, taking the modern kitchen into account. The Regional Court therefore accepted a higher comparative rent.

The Federal Court of Justice corrected that assessment: The kitchen paid for by the tenants could not be counted in the landlords’ favour. It reinstated the Local Court’s judgment. This did not, however, defeat the entire rent increase: The monthly gross rent excluding heating still rose from EUR 622.78 to EUR 671.55. Only the additional EUR 27.72 awarded by the Regional Court was disallowed (judgment of 24 October 2018, VIII ZR 52/18, paragraphs 2 to 5, 13 and 25).

What matters is who supplies the fittings

A rent increase under section 558 of the German Civil Code (BGB) depends on the objective residential value of the flat supplied by the landlord. Fittings financed by the tenant must generally remain excluded on a permanent basis. The position is different if the landlord reimburses the cost (Federal Court of Justice, paragraphs 16 to 18).

In this case, the fact that the landlord had originally supplied a kitchen did not alter the position. The landlords had agreed to its replacement. That consent did not turn the new kitchen into fittings supplied by them. The Federal Court of Justice expressly left open how an unauthorised replacement without consent would be treated (paragraphs 19 and 24).

Why the agreements still matter

A contractual clause cannot treat fittings that the landlord has not actually supplied as if they were present for future increases under section 558 BGB. Such a provision to the tenant’s detriment is invalid under section 558(6) BGB. However, the Federal Court of Justice distinguishes this from an agreement on a specific rent increase (paragraphs 21 and 22).

Our practical recommendation: Check the calculation and earlier agreements before signing a declaration of consent. Pointing out that you own the kitchen does not automatically undo agreements already made. Nor does the judgment establish a standard monthly deduction for a kitchen.

A rent index does not replace checking the individual features

A rent index is one of the statutory means of substantiating a request for a rent increase. Simply referring to it does not establish whether the amount requested is justified. The category assigned to the flat and the fittings taken into account must be correct (sections 558 and 558a BGB).

Our own illustrative example: You pay for a new kitchen yourself, the landlord approves the replacement and reimburses nothing. If that kitchen later appears in the rent index calculation as fittings supplied by the landlord, that particular item should be checked. Floor area, the age of the building, location and other genuinely relevant features must still be considered. The result may therefore be a partly justified increase.

Do not overlook deadlines and other limits

This article concerns increases up to the local comparative rent under section 558 BGB. Matters to check include the text form requirement and grounds given, the waiting periods since the last increase and the applicable cap on rent increases. A permitted percentage increase alone does not establish that the local comparative rent has also been respected.

The period for consenting generally runs until the end of the second calendar month after receipt of the request. To the extent that consent is not given, the landlord may bring an action seeking consent within a further three months. If consent is given, the increased rent is generally payable from the beginning of the third calendar month after receipt (section 558b(1) and (2) BGB). Do not ignore a letter simply because a kitchen surcharge appears questionable.

Documents that help with the review

Compare the calculation with the history of the fittings. The following documents are particularly useful:

• The rent increase letter, its date of receipt and the full rent index calculation.
• The tenancy agreement, handover record and earlier agreements on the amount of rent.
• The invoice and proof of payment for the kitchen, together with any reimbursements or contributions from the landlord.
• Correspondence about consent to the replacement and photographs of the previous and current fittings.
• The current rent, the date of the last increase and details of the actual floor area.