Commentary on mietpreisbremse: failed – not unconstitutional

The rent brake is unconstitutional, claims the Berlin Regional Court. Wrong. But it has failed for other reasons.

Until the water is up to your neck: rents will continue to rise Photo: dpa

Rent policy is a major issue in this election campaign. Rents are galloping in many cities, and affordable housing is in short supply. The parties’ concepts differ significantly: the SPD, Left Party and Greens want to tighten the rent brake introduced in 2015. The CDU/CSU and the AfD are skeptical, and the FDP wants to abolish it altogether.

If the Berlin Regional Court now finds the rent brake unconstitutional, it looks as if the CDU/CSU/AFD/FDP had already won before the election – at the judges’ table. But there is no reason to get excited. The Berlin judges’ decision has almost no significance whatsoever.

In Germany, a law can only be declared unconstitutional by the Federal Constitutional Court; a regional court can only ask the judges in Karlsruhe to review it. But the Berlin Regional Court did not do that either, because the constitutionality of the Mietpreisbremse was not at all relevant to the resolution of the specific case. The Berlin judges did introduce their position into the process with a reference decision and have now published it. Ultimately, however, this is merely a legal expression of opinion by three Berlin lawyers.

The fact that the rent brake is unconstitutional has also been heard before, for example from the owners’ association "Haus und Grund". So far, however, it has always been branded by critics as an excessive encroachment on the fundamental right to property. The Berlin judges have now ruled that the principle of equality has been violated, thus starting a completely different, rather marginal discussion.

Putting the brakes on momentum instead of imposing uniform restrictions

The objection that the rent brake in Berlin is applied at a rent level that is 70 percent lower than in Munich, for example, is true. But that is not an unfair disadvantage for Berlin landlords, as the regional court now believes. Rather, there is an overheated housing market with rapidly rising rents in almost all metropolitan areas. The rent brake is intended to break the momentum of this increase in each case, not to secure a uniform upper rent limit nationwide.

The decision of the Berlin Regional Court will therefore not make much of a splash in the legal debate. The fact that it nevertheless received a lot of media attention is only due to the election campaign – and the high symbolic effect of the Mietpreisbremse, whose name sounds as if it would actually work.

But the real problem with the rent brake is not a legal one, but a practical one. For despite the rent brake, rents continue to rise quite unchecked. Proponents blame this on the many exceptions and want to tighten the rent brake. But even if a stricter rent brake were to actually stop rent increases (which is by no means certain), apartments would still be too scarce in metropolitan areas. And it is unlikely that, in the competition for rental apartments that continue to be too scarce, low-income and particularly vulnerable applicants would now suddenly be the main beneficiaries.

Even if the rent brake sounds nice, the construction of hundreds of thousands of publicly subsidized low-cost apartments with social commitment is much more important. However, this is again the responsibility of the federal states, which is why this discussion in the Bundestag election campaign is unfortunately also rather symbolic.

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