Judgment of the Federal Court of Justice: Homes are not allowed to charge a reservation fee

Retirement and nursing homes are generally not allowed to charge any reservation fees. The Federal Court of Justice has now declared other contractual clauses to be ineffective for privately insured persons as well.

So far, many homes have done it that way, says Manfred Stegger from BIVA, an interest group for old people and people in need of care: Those who wanted a home but could not move in immediately had to pay a reservation fee to the home.

More than 1000 euros reservation fee

This is what happened to a man who is a member of BIVA. When his mother was in need of care in January 2016, she was initially temporarily housed in another home. When he finally found her place in mid-February, it was clear that she could only move in at the end of February. But he was supposed to pay a little more than 1000 euros reservation fee for the two weeks in which she could not yet live there.

Not acceptable for Manfred Stegger from the lobby group: “Someone who is looking for a place is in dire straits and also accepts conditions that they may not find particularly good,” he says. It has always been clear that a daily billing must apply for moving out. “And, in our opinion, this also applies to moving in. The billing must be accurate to the day,” says Stegger. It is not right for homes to take advantage of the plight people are in when looking for a home and to write such clauses in the contracts.

BGH: Costs only apply after moving in

The mother in need of care has since died, but the money has to be paid back, decided today by the German Federal Court of Justice (BGH) as the highest German civil court. The homes are only allowed to charge costs when those affected actually move in; regardless of whether you are legally insured or privately.

For those with statutory health insurance, it was already in the law. The only question was whether this also applies to the ten percent or so of those in need of care who are privately insured. The federal judges are now saying: The legislature has clearly regulated this. People in need of care should be protected. A distinction between those with private insurance and those with statutory insurance is incomprehensible.

“This agreement is ineffective”

A home therefore not only has to bill to the exact day when moving out or in the event of death; the BGH had decided that earlier. When moving in, you can only ask for money if a resident actually lives there.

For those who have moved into a nursing home in the past three years, this means: “They could now claim a free holding fee back, if they have paid it. This ruling also has a retroactive effect,” said Stegger. The limitation period is three years. “From my point of view, people who will sign something like this in the future can simply do so. Because this agreement is ineffective.”

Which means: you don’t have to pay this amount in the end.
A judgment that is not only important for those affected and their families. This also means for many old people’s and nursing homes that have previously charged such reservation fees: You have to recalculate.

File number: III ZR 225/20