When the rent brake does not apply

A listing priced well above the ceiling does not always mean a violation. The law carves out specific exemptions (§ 556f BGB) and permits higher rents in certain situations (§ 556e BGB). Some of these are strong legal positions. Others are claims landlords make that don't hold up.

Is the apartment a new-build?

Apartments first used and first rented after 1 October 2014 are exempt (§ 556f sentence 1 BGB). Both conditions must be met: the building has to be genuinely new. This exemption is permanent and carries over to every future re-letting of the same unit.

Has the apartment been comprehensively modernized?

The first re-letting after a comprehensive modernization (umfassende Modernisierung) is exempt (§ 556f sentence 2 BGB). The statute does not set a fixed cost threshold. In recent rulings, the BGH has required: (1) modernization costs reaching roughly one-third of comparable new-build costs (excluding land), counting only § 555b BGB measures; and (2) the apartment brought to new-build-equivalent condition in several key areas (heating, sanitary, windows, flooring, electrical). Only the first rental after the work is exempt. Subsequent re-lettings are not.

Was the previous tenant paying more?

A landlord can charge up to the rent the previous tenant legally owed (§ 556e(1) BGB). The word "legally" matters. If the prior rent itself exceeded the Mietpreisbremse ceiling, courts have ruled the excess was void from the start under § 556g BGB, even if the previous tenant never challenged it. The BGH confirmed this in VIII ZR 229/22 (July 2023): courts trace back through the chain of tenancies until they find a lawfully established rent. This is the Vor-Vormiete principle. The landlord bears the burden of proof and must disclose the prior rent before the contract is signed (§ 556g(1a) BGB).

What about furnished apartments?

No exemption. The Mietpreisbremse applies to furnished apartments. Landlords can add a furniture surcharge (Möblierungszuschlag) on top of the regulated rent. Berlin case law accepts roughly 2% per month of the furniture's value at handover. Inflated surcharges are a common workaround and can be challenged.

What about temporary housing?

Tenancies for temporary use (§ 549(2) Nr. 1 BGB) may fall outside the Mietpreisbremse depending on the contract. But furnishing alone does not make a lease temporary. What matters is the tenant's actual housing situation. Standard residential leases (Wohnraummietverhältnisse) are always covered.

Rentkompass flags renovation and premium quality signals from listing data to help you spot potential exemption claims.