"This is a new build, so the rent cap doesn't apply." This sentence is widespread in everyday tenancy-law advice – and in the vast majority of cases it is accepted far too readily. It sounds plausible, but legally it falls short. Whether the new-build exception actually applies does not depend on how modern a flat looks or how young the building is. It depends on several conditions that must all be met at the same time – and just one of them can bring the supposed "new-build argument" crashing down.
Anyone who knows these conditions can no longer be fobbed off with a buzzword. And that is the point here: to give you, as a tenant, the tools not to leave an often four-figure question – namely whether your rent is lawful – to good faith.
The new-build exception at a glance: Section 556f BGB
For new builds there is indeed an exception to the rent cap (Mietpreisbremse). Its legal basis is Section 556f sentence 1 BGB. The frequently quoted core – "dwellings first used and let after 1 October 2014" – is correct, but only the tip of the iceberg. In practice the exception breaks down into four conditions that must be met cumulatively. If even one is missing, the rent cap continues to apply.
1. It must be a genuine new build
What matters is that habitable premises did not exist before and were created for the first time. The classic cases are therefore new-build projects in which a new building is erected for the first time on bare land.
Special case – conversion into housing: An existing building that is converted into living space for the first time can, in rare cases, also be a "new build" within the meaning of the exception. Legally and factually, however, this is extremely complicated. As a rule of thumb: only where a building that was previously by its very nature unsuitable for living is made, through enormous construction and cost effort usable for residential purposes at all can a new build be present here. Anyone confronted with such a conversion scenario should not rely on gut feeling but have the classification assessed by an expert – this is where appearance parts ways with the legal position.
"Gut renovation" is not the same as a new build: The new-build exception is often wrongly projected onto renovated properties or confused with a different exception (see also Does the Rent Cap Still Apply After Modernisation or a Full Refurbishment?): the comprehensive modernisation, likewise governed by Section 556f BGB, but there in sentence 2. For the first letting after such a modernisation the rent cap does not apply – but the bar is high. The Federal Court of Justice (Bundesgerichtshof) requires substantial financial construction expenditure and tangible qualitative improvements; the flat must, in essential respects, reach a condition comparable to a new build . A new kitchen, freshly painted walls or new flooring expressly do not suffice. Anyone confronted with the argument "extensively modernised" (often inaccurately described as "completely renovated") should therefore scrutinise it just as closely as with a genuine new build.
2. First-time use
The flat must not have been used before . If the building was previously used for another purpose – as an office , say – and only later converted into living space, first-time use is precisely not unproblematically satisfied. This too dovetails with the special case under condition 1 and shows why blanket statements are misleading here.
3. The cut-off date: 1 October 2014
Readiness for occupancy and first-time use must fall after 1 October 2014 . This date is the hard line in the law – to the left of it the rent cap applies, to the right the exception may come into play. Especially with properties from 2014 and 2015 the relevant point often lies close to this line, which is why it matters particularly precisely here.
4. The landlord must actually be entitled to invoke the exception
This is a frequently overlooked point. The landlord may invoke the new-build exception only if before the tenancy agreement was concluded they duly, in text form, pointed out that this is a privileged new build – because the flat was first used and let after 1 October 2014. If this notice is missing or defective, the exception may fail – for up to two years – even if the building really is new. It is therefore worth going through your own tenancy agreement and documents carefully with this in mind before signing.
Why 2014 and 2015 properties are particularly tricky
The entry "year of construction 2014" in the listing or tenancy agreement answers no of these four questions conclusively. It says nothing certain about first-time habitability, nothing about possible prior use and nothing about the text-form notice. It may also be based on someone's own legal assessment of the situation. For a building visibly erected only in 2020, the temporal classification is usually simpler. For properties around October 2014, by contrast, a single month can make the difference between a lawful and an excessive rent – here, looking closely is worth real money.
First step: request information (Section 556g(3) BGB)
Tenants have a statutory right to information (see also Mietpreisbremse without a lawyer: what you can do yourself). Section 556g(3) BGB obliges the landlord, on request, to provide information about those facts that are relevant to the lawfulness of the rent, not generally accessible to you and readily available to the landlord. Exactly the facts relevant to the new-build exception – readiness for occupancy, first-time use, dates – can be requested in a targeted way.
Three things you should know, because this is where the pitfalls lie:
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The claim covers only the communication of facts, not the production of evidence. So you receive statements, not proof.
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These statements must then be classified factually and legally – whether they actually support the exception is a legal assessment.
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There is no guaranteethat the information is true.
Even formulating the right questions and interpreting the answers typically requires a degree of experience. But those who proceed precisely gain a solid basis – and at the same time document that they take their rights seriously.
Second step: your own research and evidence
In addition, it can be worth doing your own detective work to make the information plausible or to shake it. Clues can come from the energy performance certificate, old and current property listings for flats in the same building, property portals and project pages, your contract documents and – in a second, deeper step – the inspection of the building file . A simple internet search for the address also often turns up old sales listings or press reports for larger projects.
But be careful: many of these documents provide only clues and are, in experience, unreliable. A year of construction in a listing is not proof of readiness for occupancy in the legal sense, and an energy certificate does not show when the specific flat was first used. Here, too, it takes experience to tell clues from solid facts.
What the exception means: a worked example
Take a multi-family building that became ready for occupancy in 2019; a flat in it is then used and let for the first time. For a comparable older flat, the rent cap would allow around €800 net cold – but €1,400.
is demanded. If all four conditions of the new-build exception are met, the tenant cannot invoke the rent ceiling under Section 556d BGB; the rent cap then does not apply. If, on the other hand, the exception fails on just one condition – the missing text-form notice, say – around €600 a month is at stake, quickly a five-figure sum over the years. And: once the exception is validly met, the flat is generally not brought back under the rent cap simply because the first tenant moves out and it is re-let.
Conclusion: four conditions, a result with real value
"The rent cap doesn't apply to new builds" is correct at its core, but dangerously oversimplified. The exception under Section 556f BGB stands or falls with four cumulative conditions: a genuine new build (first-time habitability), first-time use, the cut-off date and a proper notice in text form before the contract is concluded. If one is missing, the rent cap applies.
The most sensible route runs in two steps: first assert the right to information under Section 556g(3) BGB – bearing in mind that you receive only facts and no evidence, and that these must be interpreted – then do your own research up to the building file, whose documents always provide only clues. Both require experience. Anyone who suspects that the asserted new-build exception does not hold should therefore have it checked by an expert – this is often where it is decided whether the rent can be reduced and overpayments reclaimed.
Frequently asked questions (FAQ)
Does the Mietpreisbremse apply to new builds?
Not if four conditions are met together: a genuine new build (first-time habitability), first-time use, a point in time after the cut-off date, and a proper notice in text form before the contract is concluded (Section 556f BGB). If any of these is missing, the rent cap continues to apply.
My landlord never notified me in writing about a new build – does that matter?
Yes, very much. Without a proper notice in text form before the contract is concluded, the landlord may as a rule not invoke the new-build exception – even for a genuinely new building.
Can a converted office building also be a "new build"?
Only exceptionally and under narrow conditions: where a building previously unsuitable for living was made habitable through enormous construction and cost effort. These cases are legally and factually complicated and should be assessed by an expert.
How do I find out the decisive information?
Best in two steps: first assert the right to information under Section 556g(3) BGB against the landlord, then do your own research (energy certificate, listings, building file). Note: the information covers only facts, not evidence – and must be interpreted legally.
Is a gut-renovated flat automatically a new build?
No. In terms of wording this does not, in itself, correspond to any exception known to the law. What is sometimes meant is the separate exception of extensive modernisation, with the high requirements set by the Federal Court of Justice. A new kitchen or new flooring is not enough.