To safeguard the value of rent over the long term, it is common to agree on what is known as an \u201cindex-linked rent\u201d: the rent rises or falls in line with price developments, usually measured against the Consumer Price Index (CPI). A fair arrangement \u2013 at least if the clause works in both directions.<\/p>\n\n\n\n
In the case at hand, the residential lease agreement contained an index clause that explicitly allowed only the landlord to claim rent increases. A reduction in rent, for example in the event of a falling cost-of-living index, was not provided for. The landlord increased the rent on the basis of this clause. The tenants paid the rent between February and April 2023 only under reservation. They then brought an action for repayment.<\/p>\n\n\n\n
The local court ruled in their favour \u2013 and the landlord\u2019s appeal before the Berlin Regional Court II also failed.<\/p>\n\n\n\n
The Regional Court made it clear: a valid index clause under Section 557b of the German Civil Code (BGB) must apply bilaterally in residential leases \u2013 that is, it must allow for rent adjustments both upwards and downwards.<\/p>\n\n\n\n
If a lease agreement permits the landlord to increase rent when the index rises, but does not provide for a reduction when the index falls, it qualifies as a so-called unilateral clause. Such a provision constitutes an unreasonable disadvantage to one party and is therefore legally invalid, both as an individual agreement and as a clause within general terms and conditions.<\/p>\n\n\n\n
Unlike residential leases, index clauses in commercial leases are not generally permitted but only under special conditions. One requirement for validity is, for example, a minimum lease term of 10 years pursuant to Section 3 of the Act on the Prohibition of the Use of Price Clauses in the Determination of Monetary Obligations (PrKG). The decision of the Berlin Regional Court II on the invalidity of unilateral clauses is consistent with the established case law of the Federal Court of Justice (BGH) in commercial tenancy law and therefore also applies to commercial leases.<\/p>\n\n\n\n
Exercise caution when drafting index clauses. Rent may not be adjusted only unilaterally. Reductions in the event of a falling price index must also be provided for \u2013 otherwise, the entire clause risks invalidity and repayment claims may arise.<\/p>\n\n\n\n
If your index-linked rent clause allows only for increases or is otherwise unilateral, it is worth taking a closer look at your contract. You may unknowingly have paid too much \u2013 reimbursement could be possible.<\/p>\n\n\n\n
Index-linked rent agreements can be a practical tool to adjust rent in line with inflation \u2013 provided they are drafted in a legally secure way. Pay particular attention to the following points:<\/p>\n\n\n\n
When in doubt: have your lease agreement reviewed legally before it becomes costly.
Your lawyers at SPIEKER & JAEGER are available for advice and contract drafting.<\/p>\n","protected":false},"excerpt":{"rendered":"
For landlords and tenants of residential and commercial properties, the amount of rent is a central issue. To safeguard the value of rent over the long term, it is common to agree on what is known as an \u201cindex-linked rent\u201d: the rent rises or falls in line with price developments, usually measured against the Consumer Price Index (CPI). A fair arrangement \u2013 at least if the clause works in both directions.<\/p>\n","protected":false},"author":3,"featured_media":6648,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_seopress_robots_primary_cat":"none","_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","footnotes":""},"categories":[857],"tags":[],"class_list":["post-6645","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-real-estate-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/posts\/6645","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/comments?post=6645"}],"version-history":[{"count":3,"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/posts\/6645\/revisions"}],"predecessor-version":[{"id":6658,"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/posts\/6645\/revisions\/6658"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/media\/6648"}],"wp:attachment":[{"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/media?parent=6645"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/categories?post=6645"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/spieker-jaeger.de\/en\/wp-json\/wp\/v2\/tags?post=6645"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}