The calculation of the living space for rental contracts depends on the time the contract is concluded, regardless of the type of living space. In a case from Bonn, a tenant sued for repayment of overpaid rent after a living space measurement, which has a deviation of over 10 percent resulted.
The landlady argued, that the balcony area after II. Calculation regulation (II. BV) should be taken into account in half. However, the Federal Court of Justice confirmed, that the living space regulation only allows a quarter to be taken into account.
The decisive factor is the time at which the contract is concluded. The Living Space Ordinance applies to rental agreements for free living space, if they come into force in the year 2004 were closed, regardless of previous calculation methods.
Landlord:within, which so far after the II. BV calculated, must be taken into account for new rentals 2004 bear the costs for a recalculation according to the Living Space Ordinance or stipulate this contractually.
Those: BGH, Decision v. 17.10.2023, VIII ZR 61/23