Reader question: How do I clarify a possible consumer right of withdrawal after signing a modernisation agreement at home, without adopting old time limits from a judgment?
During a visit to your German rented flat the landlord presents a modernisation agreement. You also sign up to a future higher rent and want to review the decision shortly afterwards. Now it is a question of the specific agreement concluded and a potentially applicable consumer withdrawal.
Fully secure the circumstances of conclusion and the parties' roles
Keep all signed pages, annexes and information received. Note the time, course of the conversation, prior contact and the actual place of conclusion. Was the visit announced for discussion or did another matter unexpectedly arise? These details should be presented openly, not adapted to achieve a desired legal effect.
Consumer and entrepreneur status are determined by §§ 13 and 14 BGB. § 312 BGB contains the current residential rule; § 312b BGB describes the contracts covered outside business premises. [BGB13][BGB14][BGB312][BGB312b] A landlord acting privately and a separate heading on the paper do not replace this classification.
Examine a possible withdrawal promptly and specifically
§ 312g BGB generally opens up a right of withdrawal for covered consumer contracts, but contains exceptions. [BGB312g] Therefore have the concrete sequence examined to see whether the right exists here, what it covers and what timely reaction is necessary. It is not about merely retracting an agreement to a statutory rent increase under § 558 BGB by letter.
A historical example demonstrates the significance: in VIII ZR 29/16 of 17 May 2017 the BGH assessed a modernisation agreement concluded in a doorstep situation in 2009 as validly withdrawn. [BGH2916] The contract at that time was subject to older law. The judgment is not evidence that present declarations could be withdrawn without time limit.
Apply today’s time limits instead of the old example
§ 355 BGB generally specifies 14 days and a clear declaration of withdrawal to the entrepreneur; no justification is required, timely dispatch is sufficient to preserve the deadline. [BGB355] § 356 BGB governs special questions of commencement and expiry. The current outermost deadline of twelve months and 14 days is in paragraph 4; additional conditions and rules must also be observed. [BGB356]
Therefore present all withdrawal information and declarations received and any statements about the commencement of services. A missing notice is not automatically treated as unlimited extra time. A requested consultation appointment is also not yet proven to be a declaration of withdrawal.
Keep declaration and restitution separate
If after review a withdrawal is to be declared, it must make the specific contract and the decision clearly recognisable. Secure the declaration and proof of dispatch. Clarify at the same time the consequences for any amounts already paid, the ongoing rent payment and any further claims. This article does not provide for a general payment stop.
In the BGH case at that time an equivalent replacement rent did not arise solely because of the modernised fittings; the statutory increase procedure had to be considered separately. [BGH2916] The present restitution will nevertheless be examined under current law and the contractual situation.
Fictitious next step
In the invented case the complete agreement with the actual course of the visit is provided for consultation immediately after signing. There the basis for withdrawal, deadline and declaration are clarified concretely. The tenant party then records both the proof of declaration and the further checked payment status. A historically apt catchword does not replace any of these steps.