What does a retroactive increase mean
LG Koblenz - Ref .: 6 S 32/20 - Decision of 07/30/2020
1. The appeal by the plaintiff against the judgment of the Westerburg Local Court of January 9, 2020, file number 24 C 107/19, is rejected.
2. The plaintiff has to bear the costs of the appeal proceedings.
3. The judgment of the local court in Westerburg mentioned in section 1 is provisionally enforceable without the provision of security.
4. The amount in dispute for the appeal process is set at € 1,835.66.
With regard to the presentation of the state of affairs and the dispute, reference is made to the facts of the case in the contested judgment of the Westerburg Local Court of January 9, 2020. In the appeal procedure, the following is requested:
The plaintiffs request: by amending the judgment of the local court Westerburg (24 C 107/19) to convict the defendant,
a) to the plaintiffs as joint creditors EUR 1,835.66 plus interest of 5 percentage points above the base rate from EUR 107.98 since 04/04/2019, 07/05/2019, 06/06/2019 AND 04/07/2019 and from 1,619 To pay EUR 70 since lis pendens,
b) to pay the plaintiffs as joint creditors pre-judicial legal fees of EUR 309.40 plus interest of 5 percentage points above the base rate since July 22, 2019.
The defendant contends that the appeal should be rejected.
The appeal against the judgment of the Westerburg Local Court of January 9, 2020, file number 24 C 107/19, is to be rejected in accordance with Section 522 (2) ZPO because, according to the unanimous opinion of the Chamber, the appeal obviously has no prospect of success, nor does the case in principle It is important that neither the further training of the law nor the safeguarding of uniform case law requires a decision by the court of appeal and the conduct of an oral hearing on the appeal is not required.
For justification, reference is made to the previous notice by the Chamber. The statements in the counter-declaration also give no reason for a change.
The interpretation shows that the regulations on the rent amount in § 6 paragraph 1 and paragraph 2 of the rental contract are contradicting in their synopsis. Either the respectively permissible rent is agreed as the contractual rent or a certain other rent that is below this maximum cost rent. The first variant gives the landlord the opportunity to retroactively increase the rent to the highest permissible cost rent. In this case, however, the rent mentioned in section 1 should have been the then applicable maximum cost rent, since calculation problems should no longer have arisen after the social bond of the apartment had already existed for several years. However, the rent mentioned in Section 1 was not the initially applicable maximum cost rent. If, as here, a rent is agreed in Section 1 that is below the permissible cost rent, then it contradicts the fact that in Section 2 the respectively permissible rent is agreed as the contractual rent. Of course, a landlord can also stay below the permissible cost rent. However, this must then be clearly regulated in the rental agreement and cannot be linked to the fact that the rent permitted in each case should be the contractual rent. In this case, it is unclear to the tenant what should apply.
This means that the tenant then does not know whether the permissible cost rent represents the rent owed or the specifically named payment amount, which is below the permissible cost rent. The regulation in section 2 is not a clause that only serves to be able to make retrospective adjustments to the rent at a later date. From the context of the text it follows that rent increases can only be regulated under paragraphs 3, 4 and 5. According to the wording and the system of the form used, the regulation in section 2 is the regulation of the rent amount. The fact that the rent amount selected in this case should enable the possibility of later retroactive adjustments to the rent amount in accordance with the statutory provisions does not change this.
The decision on costs is based on Section 97 (1) ZPO.
The determination of the provisional enforceability of the contested judgment is made in accordance with § 708 No. 10 ZPO.
The amount in dispute for the appeal procedure is determined in application of §§ 47, 48 GKG.
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