Commercial Rent Increases and Value Securing in Lower Saxony

When renting commercial space such as offices, medical practices, or logistics halls in Lower Saxony, there is no legal automatism for landlords to raise the rent to a local level. There is neither a qualified commercial rent index (Gewerbemietspiegel) nor a legally anchored possibility of adjusting to market values, unless this was agreed exactly in this way in the lease agreement.

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1. Index and Value-Securing Clauses (The Absolute Norm)

In order to avoid the real return of the commercial property being eaten up by inflation over a term of 5 or 10 years, almost all professional commercial landlords agree on a price adjustment clause (often called an index clause). This links the net commercial rent to the development of the Consumer Price Index (CPI), which is newly determined every month by the Federal Statistical Office (Destatis).

Strict Requirements Under the Price Clause Act

For such a sliding-scale clause to be legally valid at all, it must comply with the strict requirements of the Price Clause Act (Preisklauselgesetz - PrKG):

• Long-term Commitment: Index clauses are usually only permissible in commercial law if the landlord guarantees the tenant the use of the area for at least 10 years (fixed minimum rental period or a basic rental period plus extension options for the tenant, which total 10 years).
• If this 10-year perspective is missing, the value preservation clause may be void!

Types of Clauses

• True Sliding Clause (Leistungsvorbehalt): The rent automatically increases (or decreases!) in exactly the same percentage ratio as the consumer price index rises, as soon as a certain threshold value (e.g., "5% change since the last adjustment") is reached. Only a declaratory letter to the tenant is required.
• Reservation of Performance Clause (Leistungsvorbehaltsklausel): Landlord and tenant oblige themselves to renegotiate if an index changes significantly. (Risk: If they cannot agree, the contracts often fall apart).

2. The Stepped Rent (§ 557a BGB)

An alternative in commercial tenancy law in Lower Saxony is the stepped rent (Staffelmiete). Here, exactly in Euro amounts, it is negotiated at the time of contract conclusion at which points in time the basic rent (Kaltmiete) changes.

• Advantage: Highest predictability, no dependence on the inflation rate (good in deflationary phases, bad in galloping inflation).
• There is no limitation of the term in commercial law (unlike with residential space); the steps can also be agreed upon over a 15-year period.

3. The Turnover Rent

Particularly in Lower Saxony's retail sector (e.g., shops in pedestrian zones in Hanover, Braunschweig, or Lüneburg) as well as in gastronomy, a combination of basic rent and turnover rent (Umsatzmiete) is popular:

• The tenant pays a low monthly fixed rent ("minimum rent").
• In addition, at the end of the year, the tenant transfers a fixed percentage (e.g., 4 to 8%) of their audited net turnover at the location to the landlord as additional rent, provided this amount exceeds the fixed rent.
• This clause offers landlords the potential to earn excellently at a good location, but requires deep insights into the tenant's books (audit rights for auditors must be imperatively standardized in the contract!).

4. Modernization Surcharges in Commercial

In residential space law, the landlord may pass on the costs proportionally (8%) to the tenant after energy-efficient refurbishments. This explicit legal possibility is completely missing in the commercial tenancy law of the BGB! If the building owner of an office property wants to carry out extensive energy-efficient renovations and pass on the costs, this possibility of passing on must be explicitly, transparently, and cleanly anchored in the commercial lease agreement using a form, or one is dependent on consent in individual cases.

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