Is it legal for pension insurance agency to demand repayment of paid rent?
It is not uncommon for pension insurance agencies to demand that landlords repay pension contributions which were still paid to deceased tenants that were used to finance the rent.
1. Problem:
Pension benefits are paid to the pension beneficiary only until the end of the month in which the insured person died (Section 102 (5) SGB VI). Often, in the unknowing of the death of the pension beneficiary or for other reasons, the pension insurance agencies continue to pay monthly pension contributions to the account of the deceased. If the deceased pension beneficiary, in the past, has paid his rent through pension benefits and has given the landlord a SEPA direct debit mandate, a direct debit authorization or has given the account-holding financial institution a standing order, the rents often continue to be collected from the deceased’s account after the tenant’s death.
2. Possible opponents of claims
At the end of the month in which the tenant died, the pension insurance company is primarily entitled to a claim for repayment of the pension contributions pursuant to Section 118 (3) SGB VI against the account-holding financial agency of the deceased tenant to which the pension contributions were paid. However, if these pension contributions were otherwise disposed of by the account-holding financial agency (e.g. cash payment, execution of standing orders or direct debit authorization, cashing of checks, SEPA direct debit mandate) and a remaining credit balance is not sufficient for the remittance, the financial institution’s obligation to repay is excluded, Section 118 (3) sentence 3 SGB VI.
Subordinate to this, the pension insurance company has either a claim against the recipient of the disposal or the person authorized to dispose of the funds pursuant to Section 118 (4) sentence 1 SGB VI or, optionally, pursuant to Section 118 (4) sentence 4 SGB VI in connection with Section 50 (2) SGB X, an equal-ranked and independent claim for reimbursement against the heir or the community of heirs of the deceased pension beneficiary. The selection of the joint debtor is a discretionary decision that must be expressed in the notice of recovery.
Since the pension insurance agencies usually have no knowledge of the person of the heir or the persons of the community of heirs, a reclaim against the heir or the community of heirs is time-consuming and labor-intensive. Therefore, in most cases, pension insurance agencies address the landlord. The consequence is that the landlord must repay the pension contributions and, as a rule, due to a previously unconditional deposit repayment in the context of the termination of the contract with the heir or the community of heirs, must demand the now outstanding rents from the heir or the community of heirs.
3. Solution:
It is advisable to declare a reservation by default in the deposit settlement and repayment (remission agreement) or in the return protocol (negative acknowledgement of debt) with regard to the assertion of any rent claims against the deceased tenant’s heir(s) that have revived due to justified claims for repayment by the pension insurance agency. If the pension insurance agency’s claim for recovery is then upheld against the landlord during the hearing or if an objection to the notice of recovery is not upheld, the landlord is entitled to a “legally secure” claim against the heir(s) with regard to the monthly rents that were paid and recovered by means of the pension contributions.
A recommendation to the landlord to have the pension insurance agency confirm that there are no claims for repayment before the deposit is settled and repaid is, on the other hand, double-edged: because in this way the pension insurance agency is virtually “poked in the nose” at its claims that the landlord does not like.