Reader question: When does section 556b paragraph 2 protect me against a contractual set-off prohibition and which steps remain to be checked?
You mean to recover money from the landlord side, want to deduct the sum from the next rent and find a set-off prohibition in the contract. In Germany section 556b paragraph 2 BGB contains a special protective rule for this. It concerns certain claims and requires timely notice of the intention in written form (Textform). However, the provision neither confirms your claim nor any arbitrary set-off. [BGB556b]
First determine your own claim
Write down which amount you are claiming from which specific transaction. The protective rule names claims under sections 536a or 539 BGB as well as claims from unjust enrichment because of overpaid rent. Any other claim will not be turned into a covered rent claim merely by your labelling it as such. The correct legal basis must be checked. [BGB556b]
For that, gather the contract, invoices, proof of payments and the correspondence to date. An as yet unresolved cost estimate is something different from an existing quantified claim. This article does not replace a check whether, for example, your own repair expenses are at all compensable.
What the contractual exclusion changes
Section 556b paragraph 2 allows the set-off referred to there or a corresponding right of retention despite a contractual provision to the contrary, if the intended exercise was notified in text form at least one month before the rent is due. A disadvantageous deviation from this rule is ineffective. [BGB556b]
The one-month rule is therefore not a blanket statement that every set-off in every tenancy agreement is only possible after one month. Check the exclusion actually agreed, its validity and the statutory protection for your claim together. For an imminent payment date you may not simply pretend that a just-sent message has already been received long ago.
Separate prior notice and set-off declaration
The protective rule requires a legible declaration in text form; the person making the declaration must be named and the statutory requirements for a durable medium must be met. Document content and receipt. An undocumented telephone conversation does not constitute this notice. [BGB126b][BGB556b]
The actual set-off takes place under section 388 by declaration to the other party. A condition or time stipulation renders this declaration ineffective. Therefore note the difference between prior notice of intent and the later legally required declaration, instead of patching together unclear wording from different templates. [BGB388]
Calculate the payment consequence technically
Under section 387 the general preconditions for set-off must be present. Section 389 describes the extinction only insofar as the appropriate claims coincide. A disputed own claim is therefore a real risk for your rent payment. [BGB387][BGB389]
In the hypothetical case a tenant wants to set off 200 euros. They first check whether these 200 euros are owed at all, which rent would be affected and whether the contractually relevant prior notice can be given in time. A clearly worded notice does not cure a missing claim.
Bring exactly these four points into the advice: claim, contractual clause, receipt of the notice and intended declaration. A right of retention also has different effects to set-off; the terms are not interchangeable labels for an arbitrary rent deduction.