It is a very special construct that some building societies have come up with in the past to get consumers to participate in a community of building savers: Anyone who does not need the promised building loan after the savings period and does not call it up should take one afterwards receive an interest bonus. This is paid out if the customer renounces the loan and terminates the contract again. There is then, for example, 5 percent instead of the original 2 percent interest on the accumulated credit. The difference will be paid out afterwards as a lump sum.
This was also agreed with a home loan and savings contract, which ultimately led to a dispute between the provider and the customer and ultimately ended up in court. The Brandenburg Higher Regional Court should decide. Attorney OIiver Renner from the law firm Wüterich Breucker Rechtsanwälte reports on the case.
The case before the Brandenburg Higher Regional Court was initially sparked by a general dispute that had been smoldering for a long time between building societies and some specific building society customers: in the past, many building savers had not used their building society contract as intended – i.e. to save money for a house. Rather, they saw him as an interest-bearing investment. The savers benefited from the interest, but never called off the construction loan, but simply let the contract continue even after the so-called allocation maturity. The home loan and savings contract as an investment model was sometimes even explicitly advertised as such by building societies.
BGH accommodates building societies
In times of zero interest rates, such customers now put the building societies in distress: the interest to be paid grew beyond the heads of the providers. The Federal Court of Justice ruled back in 2018 that if the loan is not called up, the building society can also terminate such contracts – if the agreed savings amount has been reached but the customer has not called off the loan for ten years. A number of building societies have already made use of the right of termination.
However, once the contract has been terminated, customers, in case of doubt, have also forfeited their entitlement to the higher bonus interest. Because in order to receive the bonus, they would have had to declare beforehand that they wanted to forego the home loan. Bausparkassen do not have to inform their customers in advance of the risk of losing the bonus interest rate in this way, explains attorney Renner, referring to the decisions of two higher regional courts (OLG Stuttgart, decision of June 7, 2019 – 9 U 34/19; OLG Nuremberg, judgment of February 11, 2020 – 14 U 36/19).
The Nuremberg Higher Regional Court has also specified what it means from the customer’s point of view to forgo the home savings loan. The customer must actively declare this waiver, Renner continues. If the customer simply gives the home savings provider a payment order for the money saved, from a legal point of view this is not yet a waiver of the loan – the home savings bank then no longer has to pay the customer a bonus (OLG Nuremberg, judgment of February 11, 2020 – 14 U 919/19).
When the interest bonus expires
The case before the Brandenburg Higher Regional Court mentioned at the beginning was about a further subtlety, here too the dispute revolved around the subsequent bonus interest. This bonus interest can only no longer be an issue if the building loan contract has actually been dissolved. However, in order to really end the building savings contract, the building society must have given its customer a legally effective notice of termination. And the customer must also have received it (judgment of August 19, 2020 – 4 U 23/20).
The mere question of where to transfer the saved amount is not sufficient as termination. It is also not enough to claim that a letter of termination was sent to the customer. Because in case of doubt, the home loan and savings provider must be able to prove that the customer actually received the letter of termination, the Brandenburg Higher Regional Court decided.
“For this, the notice of termination must actually have been received by the saver,” explains attorney Renner. “If this is not the case, then the termination is not effective for this reason alone.” Renner continues: “The mere assertion that the letter of termination was sent is not sufficient.” the home loan and savings provider cannot claim that the customer has thus received the notice of termination.
This detail is important if customers still want to assert their claim to the bonus that has allegedly already been forfeited, as Renner emphasizes. Because if the contract has not been effectively terminated, it officially continues. The customer thus retains the opportunity to declare his waiver of the home savings loan in a formally correct manner. In this case, he can still take the bonus with him.
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