Reader question: What information about the exception do I need before making my contractual declaration and how do I distinguish missing information from a defective form?
For a new German rental flat a high initial rent is justified with “previous rent” (Vormiete) or “new build” (Neubau). If the relevant scope of the Mietpreisbremse applies and the permissibility of the demanded rent is based on §556e or §556f BGB, a specific unsolicited disclosure must be given before your contractual declaration. §556g paragraph 1 a regulates content and consequences. A reassuring headline does not replace this disclosure. [BGB556g]
Confirm the scope first
The rule on the initial rent under §556d depends on an area determined by state ordinance. Therefore check the location, contract date and the ordinance then applicable. The article does not claim a nationwide uniform local applicability. [BGB556d]
It deals with a new contract under current law. There are transitional provisions for older arrangements; in particular the duty to disclose in paragraph 1 a does not apply to tenancies arising on or before 31 December 2018. A contract review today must therefore not be transferred unchanged to every old contract. [EGBGB22949]
Which exception is actually claimed?
For a higher previous rent the provision requires the indication of its amount. For a claimed modernisation under §556e paragraph 2 information must be given that modernisation measures were carried out within the last three years before the start of the tenancy. The new-build exception concerns the first use and letting after 1 October 2014; the other exception concerns the first letting after comprehensive modernisation. [BGB556g][BGB556e][BGB556f]
Assign the statement received precisely to a claimed legal basis. “Everything newly done” by itself does not yet state which legal exception is being asserted. The legal correctness of the exception is then a separate assessment; a formally provided disclosure does not automatically make the demanded rent permissible.
Secure timing and form
The disclosure must be made before you submit your contractual declaration. Therefore keep received messages, attachments and the sequence up to your declaration. Under §556g paragraph 4 the relevant declarations require text form. [BGB556g]
So check separately what was communicated, when you received it and in what form. An oral statement at the appointment must not be tacitly treated as in every respect identical with a timely and properly formed disclosure.
Missing content and form defect have different consequences
If the letting side did not give the disclosure, it cannot initially rely on the corresponding permissible rent under §556e or §556f. After proper subsequent provision paragraph 1 a generally envisages a period of two years. If, on the other hand, the disclosure was merely not given in the prescribed form, reliance on the exception may become possible after proper subsequent provision. [BGB556g]
In the hypothetical case there is initially only a general advertising phrase. The prospective tenant has it examined whether any substantive disclosure was given at all or whether only its form was defective. This distinction significantly changes the possible sequence for subsequent provision.
For a concrete rent calculation or recovery you need further examination. §556g contains additional disclosure and objection rules that this article does not fully work through. Its result is a documented information status with content, date and form; no unilateral change to payments is derived from it across the board.