The announcement came like a bolt from the blue, without even a hearing. But on Thursday morning, the Federal Constitutional Court proclaimed that the Mietendeckel, which had frozen rents for five years, was cancelled.
It’s obvious why Germany’s top judges chose such an unusually stealthy procedure: they wanted to prevent demonstrations. Just a few hours later, up to 20,000 protesters gathered at Hermannplatz. Before long, police were attacking them with batons and pepper spray.
The 50-page ruling was purely formal. Germany’s federal government had passed a Mietpreisbremse (“rent brake”) back in 2015. If you’ve never heard of it, that’s because it has been totally ineffective. The court nonetheless decided that the Berlin government had no right to regulate rents with the Mietendeckel, which has in fact put a brake on rising rents.
The rent cap had been extremely popular — 86 percent of Berliners, after all, are renters. Rents in the city have roughly doubled over the last ten years. Now, people will see their rents shoot up by hundreds of euros a month. Some landlords are demanding back payments for the entire time the rent cap was in effect. This decision may lead to a wave of evictions. Berlin’s government is offering loans to renters to help cover the back payments — so we’re supposed to give more public money to landlords?
As my colleague Konrad Werner has pointed out in this magazine, the Mietendeckel led to a 30 percent reduction in the number of apartments on the market. But this was not some “invisible hand” at work. This was a case of an organised “rental strike” by landlords (as opposed to a “rent strike”).
This is a violation of the law. Since 2014, Berlin’s Zweckentfremdungsverbot (prohibition of misappropriation) has made it illegal to leave living space empty (or to transform it to retail space or vacation rentals). Theoretically, if an apartment is unoccupied, the district governments are supposed to break open the doors and rent out the properties at market rates, sending the proceeds to the owners. The reason that this is almost never done this is that the district governments have no resources to enforce the law.
Think about that for a second. The police are on the streets every day to persecute people for possessing tiny amounts of recreational drugs. Yet billionaire landlords are violating the law in broad daylight, depriving people of housing, and there are “no resources”?
A lot of apartments were taken off the market last year and are standing empty. There would be a simple, unbureaucratic solution to this problem. In the Netherlands before 2010, if an apartment was shown to have stood empty for six months, people could break in and claim to be the legal occupant. Pass a law like that, and I can guarantee that the housing market would be flooded by thousands of new apartment listings the very next day. Most of them wouldn’t even be squatted — it would be enough to scare the owners.
This whole experience has shown that the only way to prevent exploding rents is to bring as much housing as possible under democratic control
Further, one could throw a couple of realty speculators in prison for their illegal rental strike. Does that sound too “brutal”? But we are talking about a city with 5,000 evictions per year. Property owners regularly have families thrown out of their apartments. And yet legal accountability is too much for them?
The ruling from Germany’s constitutional court is presented like an objective application of neutral law. The “independent judiciary” is kind of like a secular religion in Germany’s bourgeois society. I could point out that Peter M. Huber and Peter Müller, two of the judges who ruled against the Mietendeckel, are a former CDU politicians — the very party that sued to stop the rent cap. Are we supposed to believe they suddenly became an independent arbiters as soon as they put their red gowns?
This decision is an example of what Germans refer to as Klassenjustiz or “class justice.” That term was on numerous signs at the protest last Thursday. The term was first developed in the 1920s, when aristocratic judges would sentence workers to hard labor for taking part in a protest. Meanwhile, when Adolf Hitler attempted a right-wing putsch in 1923, leaving 20 dead, he was sentenced to just nine months in a luxury prison. This is more or less how Germany’s legal system works today: “justice” is meted out by a wealthy, mostly male, mostly right-wing caste.
Imagine if cases like this were decided by juries. You would never see another eviction or rent hike in Berlin. Yes, judges are “independent” – they are independent of the democratic will of the people, and they are thus dependent on the ruling class.
Defenders of the current system like to say that the judiciary protects minority rights. German judges are not exactly famous for protecting people of colour against constant police harassment. The one minority they do protect is the minority that controls great wealth. As the socialist poet Kurt Tucholsky put it. “I don’t have anything against class justice. I just don’t like the class that is dishing it out it.”
This ruling gives a new impulse to the campaign for Enteignung, or expropriation of the big landlords. The rent cap was originally proposed by the SPD as an alternative to nationalisation. They said we could do without expropriation because they would pass a rent cap. This whole experience has shown that the only way to prevent exploding rents is to bring as much housing as possible under democratic control. And while the Constitutional Court has ruled that Berlin cannot regulate rents, numerous legal scholars including the Scientific Service of the Bundestag have declared that Berlin has every right to expropriate the big landlords. You might know someone who owns an apartment and rents it out as a form of pension. What would expropriation mean for them? Nothing. Literally nothing. The campaign is for the nationalisation of companies that own 3,000 or more housing units. I bet you don’t know anyone like that.
Control of the housing market by the population, otherwise known as democracy, is the solution. As Franz-Josef Degenhardt sang: “the real solution of this problem, is for some, but really only a very few, uncomfortable.” If we want millions of Berliners to live in security and with some basic dignity, then we do need to infringe on the “rights” of a couple of billionaires to throw people out of their homes.
Red Flag is a weekly political column by Nathaniel Flakin.