The prospective tenant is to provide a cash deposit and additionally present a parental guarantee (bürgschaft). Such a combination should not be structured solely according to the desire for as much security as possible. For residential lettings, the reason, scope and the declarations involved must be legally examined.
Do not assume two separate maximum limits
Section 551 BGB generally limits the security to be provided by the tenant to three times the monthly rent excluding separately stated operating costs. Disadvantageous deviations are ineffective under paragraph 4. [KAUTIONDE] The mere division of required security into cash and a guarantee therefore does not automatically create a separate full security cap for each.
Our editorial recommendation: First describe which security you actually want to require at the start of the contract. Record the entire proposed arrangement in an overview and, if in doubt, submit it for review. A common template or the note that other landlords do the same does not replace legal classification.
Differentiate between guarantor and tenant
Someone who assumes a guarantee is not thereby simply another person in the tenancy agreement. The declaration has its own content, for example with regard to claims, duration and limits. Give the intended person the full draft and space for independent review. An incidental sentence on a self-disclosure should not be treated as a comprehensive, reliably effective obligation.
This article only assesses the preparation of a demanded security combination in the case of a new letting. Special constellations of a voluntary third-party performance or later provision of security are not conclusively classified here. They must not be generally equated with the initial situation nor used as a simple workaround guide.
Example: An amount is not available twice
In the purely fictitious example the relevant monthly rent is 700 euros. Three times that is 2.100 euros. This calculation only illustrates the statutory baseline; it does not examine a specific guarantee. Whoever requires a cash deposit of 2.100 euros should not additionally assume the same amount again as an apparently independent standard security. The concrete arrangement must be considered in its entirety.
The cash deposit has its own handling rules
For an agreed cash security, Section 551 BGB provides, among other things, for partial payments and for the deposit to be held separately from the landlord’s assets. [KAUTIONDE] A guarantee does not discharge these duties. Therefore avoid a contractual organisation in which documents are carefully collected but the money ends up without clear allocation in a current private account.
Record which security is actually agreed and provided. A guarantee not yet received remains open and is not treated as present by a mere tick in a box. Private documents of the guarantor are processed only to the necessary extent and not used as general background material for the whole household community.
Remove ambiguity before signing
Have a doubtful draft reviewed before use, rather than hoping for a later judicial correction. The next sensible step is a comprehensible, appropriate security agreement. This article guarantees neither the effectiveness of an individual clause nor the later economic capacity of a guarantor.