Paying rent under protest: the safe route to a rent reduction

The risk of cutting the payment directly

Set the rate too high and you build up arrears, and those become dangerous faster than most people think. The landlord may terminate without notice if you are in default on a not-insignificant part of the rent on two consecutive dates (§ 543 Abs. 2 Satz 1 Nr. 3 Buchst. a BGB). Under § 569 Abs. 3 Nr. 1 BGB “not insignificant” already means more than one month's rent. The threshold of two months' rent only applies over a longer period (letter b).

Withhold 40 % and you exceed one month's rent after just three months. Good faith will not help you much here: the Federal Court of Justice applies strict standards to a tenant's non-culpable mistake of law and has expressly abandoned earlier leniency. Anyone operating in the grey zone of rates is acting negligently.

How paying under protest works

1. 1You report the defect in writing and set a deadline for it to be remedied.
2. 2In the notice you state expressly that from now on you are paying the rent only under protest.
3. 3You keep transferring the full rent and note the reservation in the payment reference.
4. 4You document the defect without gaps for as long as it lasts.
5. 5Once the defect is fixed you reclaim the amount you overpaid, in court if necessary.

The right wording

The reservation must be recognisably tied to the specific defect. A blanket “under protest” with nothing attached is not reliably enough.

In the payment reference:

  Miete [month/year], Zahlung unter Vorbehalt wegen Mangel
  (Schimmel Schlafzimmer, angezeigt am 12.03.2026)
  [Rent for (month/year), paid under protest because of a defect —
   mould in the bedroom, reported on 12.03.2026]

In the letter to the landlord:

  Bis zur vollständigen Beseitigung des angezeigten Mangels zahle
  ich die Miete ausdrücklich nur unter Vorbehalt der Rückforderung.
  Ein Verzicht auf mein Minderungsrecht nach § 536 BGB ist damit
  nicht verbunden.

Reclaiming: deadlines and how to proceed

The claim for repayment is time-barred after three years. The period starts at the end of the year in which the claim arose and you learned of the circumstances behind it. Independently of your knowledge, an absolute limitation period of ten years applies.

Demand the money back in writing and with a deadline. Set out the calculation openly: period, rate, gross warm rent, total. If the landlord does nothing, a tenants' association or a specialist lawyer is the next step.

When cutting the rent directly can still make sense

• The defect is unambiguous and the rate undisputed, for example where a court has confirmed a discrepancy in floor area
• The landlord has acknowledged the reduction in writing, both in principle and in amount
• A tenants' association or a lawyer has checked and confirmed the rate
• The defect has existed for a long time and the landlord stays inactive despite repeated deadlines

Frequently asked questions