Take precautions so that there is no emergency.

Photo: dpa / Britta Pedersen

A membership in the Berlin Tenants Association (BMV) is associated with litigation insurance for tenancy law. The cost of insurance is already included in the membership fee. The BMV has concluded a group contract with the legal protection insurance of the German Tenants’ Association (DMB). The deductible usual for insurance companies – here 150 euros – is borne by the BMV for its members.

This means: No matter whether you have been sued by your landlord or whether you want to file a lawsuit yourself, whether you go to the district court or district court, there are no costs – provided the insurer issues the cover letter. As with many other insurance companies, insurance coverage only comes into effect after three months of membership. Timely membership therefore has advantages. “The biggest problem is that many only join the tenant association after they have been given notice of termination or a rent increase,” explains Isabell Pohl, who is responsible for all questions relating to process cost insurance at the BMV.

What is the date of the occurrence of damage?

Smoldering cases that arose before the waiting period expired cannot be taken over. This is common in the industry and also understandable. Insurance is based on the principle of providing for the future. It doesn’t work until you want to take out insurance immediately afterwards. The central question is therefore: Did the so-called damage event arise before or after joining the BMV?

It is not always as clear as a termination or a rent increase, where the receipt of the letter is decisive. For example, anyone who only becomes a member when their landlord has filed a lawsuit for tolerating the modernization should generally not hope for insurance protection. In this case, the receipt of the modernization announcement would already result in the occurrence of damage.

If you want to complain about compliance with the rental price brake or the rental cover, the date of the conclusion of the rental agreement or the entry into force of the corresponding regulation is decisive. Anyone who moved into a new apartment on March 1, 2020 and only becomes a member of the Berlin tenants’ association in April cannot be covered if he or she has to go to court for an excessive rent – not even half a year later.

If a sublease is objected to, the start of the lease applies, and not the first warning or even the termination as the date of the insured event. Whether the insurance company can rely on the pre-contractual nature of breaches of duty depends on how long ago the breach of duty occurred, which is checked in each individual case.

Problems can also arise in the case of housing shortages. If tenants reduce the rent over a longer period and receive a payment suit or termination, no cost recovery is granted if the deficiency occurred during the three-month waiting period, as this would be a pre-contractual insured event.

In the case of operating cost statements, the receipt of the statement is the event that triggered the dispute. However, if you have been arguing about a certain item for years – such as caretaker costs – this can be seen as a pre-contractual agreement. “Many tenants can hardly understand that,” says Isabell Pohl.

Jessica Jonas from the board of DMB Rechtsschutz-Versicherung AG said. “You also can’t take out motor vehicle insurance if the accident has already happened.” Cologne legal protection insurance was founded by the DMB in 1982 because people were dissatisfied with the insurance offers on the market at the time. “We only offer legal protection and are independent of other companies,” emphasizes Jessica Jonas. »There are no outside shareholders behind us, we are 100 percent in the hands of the German tenant associations and their umbrella organizations.«

Some tenant associations do not offer legal protection insurance, while others do not include the fee for the membership fee. You also have to pay the deductible for some – unlike the Berlin tenant association – as a member.

Some Berlin peculiarities

According to the group contract, legal disputes regarding severance payments are actually excluded. However, there is a special regulation here according to which the costs can be borne if a ban on offsetting has been clearly agreed. That means: The settlement agreement must clearly regulate that the landlord must not set off other claims, for example alleged rent arrears due to rent reduction.

In addition, there are some peculiarities in the capital that have to be taken into account. No other city has so many shared apartments and subleases. This can lead to various problems. Lawyers can charge a higher fee if they are dealing with more than one client.

However, insurance cover is only available for members, which means that if the roommate or partner is not a member of the tenant association, these extra fees will not be paid. The only exceptions are spouses. “We generally recommend that all household members become members,” says Isabell Pohl.

Furthermore, legal protection only applies to the apartment you live in. Anyone who has sublet all or more than 50 percent of their apartment and lives elsewhere cannot receive cover in the event of a legal dispute.

The insurance company also vetoed excessive claims for damages. “I recently had the case that members wanted to spend 40 hours a week on clearing out a cellar as an expense,” reports Isabell Pohl. In another controversial case, tenants wanted to claim damages for lead poisoning from water connections. Since such a health connection is difficult to prove, a process would probably not have been successful.

Have all the options for an agreement been exhausted?

Isabell Pohl meets regularly with representatives of the DMB legal protection insurance to discuss controversial cases. “We look at each case individually and usually find a solution,” explains Isabell Pohl. It was the same with a tenant who wanted to sue for a permit to keep dogs. After the death of her dog, she wanted to buy a new one, but the landlord refused to consent. The litigation cost insurance initially refused coverage for “reasons of damage reduction”. But the BMV managed to change the mind.

“Sensible declaratory actions are usually accepted without any problems,” clarifies Isabell Pohl. For example, if you want to sue your landlord for the repair of a dilapidated gas boiler or want to have the rent increase checked after a modernization, you won’t have any difficulties – provided that all possibilities of an out-of-court settlement have been exhausted and your membership fees have been paid.

The situation is different if a tenant is so outraged about a termination that he does not want to wait and see whether the landlord files a lawsuit, but instead wants the ineffectiveness of the termination to be determined in court. “That makes no sense – it would even be a lawyer mistake,” said Pohl. Legal protection insurance therefore rightly rejects such processes.

There is also no shaking the principle that you cannot change the lawyer during the procedure – or pay the second lawyer out of your own pocket. “Sometimes it happens that one is dissatisfied with the lawyer or that the chemistry is just not right,” says Isabell Pohl. But you can only change when a fee claim has been completed, i.e. when the first instance has ended and the second one is up. Or if an additional injunction is to be obtained.

It goes without saying that the cover letter is not a blanket assumption of costs for all pending disputes with the landlord. But sometimes a settlement is made in court, which also includes non-pending claims.

An example: You argue with the landlord about a rent reduction, but then suddenly combine this in court with the question of keeping dogs. In terms of fees, this leads to an increase in costs, the so-called comparative added value. The insurance does not easily bear this. If tenants are then claimed for the higher costs, they no longer understand the world, says Pohl: “Here, too, we have a special regulation that says that in individual cases it can be supported to a small extent.” However, the lawyers would have to get away Have knowledge and they also have a duty to inform that the client may incur costs.

From: TenantMaganzin 6 + 7/2020

In the nd guide from July 29, 2020: On the expiry of legal protection and legal aid.

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