Ask a lawyer on the topic of Tenancy law

Do we only have to pay what is stated in the rental agreement?

May 13, 2014 | 50,00 EUR | answered by Mikael Varol

Dear Sir or Madam,

I have one final question regarding the matter mentioned multiple times:

We have rented a property, the rent is covered by the job center. The property is actually larger and slightly more expensive than the maximum rate allowed for the region. Attempts to claim an additional need due to health reasons have been unsuccessful. In order for the job center to not only pay for the property but also approve it, the landlord has stated in the rental agreement the amount that is exactly 1 euro below the maximum rent rate we are entitled to. We have been paying the difference of nearly 50 euros in cash so far. It is up to us whether we pay a "surplus rent" from our standard benefits - if a certain amount is not exceeded.

Now the question arises, in case of certain disputes, whether only the rental agreement with the stated cold rent is valid for us? No contract was made regarding the "additional payment", as this should be kept "away from the tax office" (according to the landlord). However, we do not want to accept or tolerate this any longer. However, during the disputes with the landlord, this additional payment was mentioned in the correspondence, but at least it could be inferred from it. Now the question is: Can we simply say in the future: "We pay what is stated in the rental agreement, no other contracts were made"? Or could the landlord sue us in this regard, claiming that something else had been agreed upon and that this could be inferred from the correspondence regarding the disputes?

On the other hand: Wouldn't the landlord be putting himself in a difficult situation, since this additional payment "off the books from the tax office" could potentially constitute tax evasion - even if only to a small extent? The landlord has had very intense problems with the tax office in the past - this may be important information to consider.

Mikael Varol

Dear seeker of advice,

I am happy to answer your inquiry taking into account your description of the situation and your efforts as follows:

Based on your description, it appears to be a so-called sham transaction according to § 117 of the German Civil Code (Bürgerliches Gesetzbuch - BGB). According to § 117 para. 1 BGB, this is void, meaning a lease agreement at a rent 50€ lower. Instead, according to § 117 para. 2 BGB, the hidden transaction, i.e. the lease agreement at a rent 50€ higher, is actually intended and generally valid. Based on your description, I do not see any other grounds for invalidity.
The conclusion of a lease agreement is not subject to written form and can therefore also be concluded orally, as you have indicated. However, in this case, the landlord would have to prove if they claim that the lease agreement at the lower rent was only concluded for appearance's sake and that actually 50€ more were agreed upon.
Apart from that, if legally permissible, the landlord could increase the rent.

Finally, I would like to draw your attention to § 71 of the Tax Code (Abgabenordnung - AO), as you could be accused of aiding tax evasion. According to § 71 AO, anyone who commits tax evasion or tax concealment or participates in such an act is liable for the taxes evaded and the unjustly obtained tax benefits, as well as for the interest according to § 233 AO. This means that you would also be liable for the damages caused by tax evasion.

I hope I could provide you with an initial overview. If you have any further questions, please use the free follow-up function.

Best regards,

Mikael Varol
Lawyer
Paderborner Straße 2
10709 Berlin
Tel: 030 / 893 615-0
Fax: 030 / 893 615-55
info@rechtsanwalt-varol.de
www.rechtsanwalt-varol.de