Dusseldorf – real estate is expensive. Hardly any buyer can set the price for a house or apartment in cash on the table. Instead, they take out loans, usually with long terms of ten years or more. “However, there may always be situations that cause consumers to repay the loan unscheduled before the expiry of the contract,” explains Markus Feck of the Consumer Affairs Center North Rhine-Westphalia in Dusseldorf. “Be it a divorce or a professional move.” Then the property usually has to be sold. With the sales proceeds, the consumers pay off the remaining debt.
The problem: “The financial institutions demand damages in these cases, a so-called prepayment penalty,” explains lawyer Daniela Bergdolt from Munich. This is a compensation for the fact that the bank can only lend back the repaid loan amount at lower terms. “Legally, this is perfectly fine,” says Bergdolt, who is also a member of the executive committee of the Working Group Banking and Capital Markets Law in the German Bar Association.
Nevertheless, it is annoying for customers. Because the demands of the banks are often considerable. “On average, about ten percent of the remaining loan amount is required,” observed Niels Nauhauser of the consumer center Baden-Württemberg. On average, customers have to pay about 10 000 euros if they cancel their loan agreement ahead of time. “In some cases, claims were 50,000 euros.”
How exactly the prepayment penalty is calculated is complicated. Numerous aspects play a role here, such as the agreed loan term, the remaining term of the contract and the current interest rate level. In addition, the potential profit that the bank can make, because it can now invest the money again. “Hardly any customer can really understand that,” explains consumer advocate Feck. “So there are a lot of court decisions on all instances on this issue.”
According to Feck, a review of current cases revealed that in just over eight out of ten cases, the bank demands too much compensation. And here’s the next problem: “It’s not easy to persuade the bank to correct the calculation, because the many court judgments that are sometimes consumer-friendly, sometimes bank-friendly, allow banks to always cite any judgment that their position based. “
The German banking industry, however, sees something different. “The calculation of the prepayment penalty is based on the general principles of civil law,” explains a spokesman for the umbrella association. Precisely because numerous aspects had to be taken into account, the calculation would be complex and therefore not easy to understand. “However, this is due to the requirements of law and case law and ultimately serves the purpose of the customer to accurately determine the damage incurred.”
To accept the demand of the bank simply uncritically, the experts think but not a good idea. “It’s always worth having the calculation checked,” says Nauhauser. Because often she is not completely correct. “It happens again and again that, for example, based on wrong periods or additional fees were calculated,” also knows lawyer Bergdolt from experience.
Customers whose loan agreements have been running for some time can even hope to escape the early repayment penalty altogether. “Frequently, the revocation instructions are not legal in older loan agreements,” explains Bergdolt. These clauses inform customers that they can cancel the contract within 14 days.
“In faulty instructions, for example, the addressee was not clearly identified or the customer was not clearly informed about the legal consequences,” says Feck. In addition, credit institutions have to inform the consumers clearly and unequivocally about the right of withdrawal in terms of content and design, for example, the district court of Ulm (Az .: 10 O 33/13 KfH) ruled. In this case, the corresponding contractual clauses of a savings bank did not meet these requirements.
The advantage for the customer: In legally dubious clauses, the 14-day withdrawal period does not start to run. This means that customers can revoke the loan agreement for years to come. “No matter for what reason they terminate the contract then, a prepayment penalty is not due,” says consumer advocate Feck. A closer look at the credit agreement can pay off in case of an early exit.