After a technical review, a specific rent amount is to be refunded. During the period in question the tenant received benefits under SGB II. Before you prepare a transfer, therefore, another question must be clarified: who is actually entitled to this refund claim?
Clarify claim amount and claim ownership separately
Section 812 BGB describes the starting point for the restitution of a benefit received without legal basis. [BEREICHERUNG] Whether an overpayment exists and how large it is is here already assumed to be a separately dealt-with question. The article does not calculate rent control (Mietpreisbremse) or rent reductions (Minderung).
Section 33 paragraph 1 SGB II provides, under its conditions, for a statutory transfer of claims up to the amount of the expenses incurred. Important are, among other things, the period concerned and the question whether, had the obliged party performed in time, corresponding social benefits would have been omitted. [UEBERGANG] The mere sentence that the person receives support does not yet fully answer these requirements.
Break down the actually affected period
Our editorial recommendation: for each affected monthly item, compile the assumed overpayment, payments made and the information required for the transfer check. An earlier rent account with only a single overall balance is too crude for this purpose.
Do not demand the entire private benefits file without scrutiny. Clarify, with appropriate legal support and the parties involved, which targeted proofs are needed for entitlement, period and possible transfer. The actual recipient question is managed with a named next feedback.
Do not read an absence of authority mail as a release
In judgment VIII ZR 150/23 the BGH confirmed the transfer of a rent refund claim under Section 33 paragraph 1. He did not treat a special written notice to preserve rights as a prerequisite for this transfer. He expressly left open whether such a notice was required for retroactive invoking. [BGH]
You therefore cannot answer the question of claim ownership solely by the fact that no authority letter has arrived so far. Likewise, an unanswered query does not yet result in a re-transfer. According to the judgment, the statutory transfer does not depend on whether the benefits provider actually pursues the claim. [BGH]
Fictitious case: a repayment covers different months
Nora has a refund amount composed of several monthly items. However, the available information on benefit receipt does not straightforwardly cover the same overall period. She therefore does not prepare a single blanket transfer to the tenant.
The technical clarification assigns the items to the actually documented benefit status and examines the statutory conditions. For each part it is recorded which person or body is entitled and which evidence supports this classification. The division is not guessed solely from the name of the original payer.
Have a claimed re-transfer evidenced
Section 33 paragraph 4 contains a possibility of re-transfer for court enforcement. [UEBERGANG] If the tenant relies on this or on a special authorisation, the concrete content belongs in the review. A request for re-transfer is not yet an actually effected re-transfer. [BGH]
The clarified conclusion links amount, period, claimant and appropriate route of performance. If one point remains disputed, the concrete legal next step is agreed. The recipient check is intended to enable correct fulfilment and not to create an indefinite filing of a refund claim already to be dealt with.