Additional costs when renting living space: Allocable and non-allocable costs
The question of additional costs when renting living space is of great importance for both landlords and tenants and is subject to legal regulations, those in Germany especially in the second book of the Civil Code (§ 556 BGB) are anchored. Only additional costs are eligible for apportionment, which occur regularly. repair- and administration costs, however, are always the responsibility of the landlord. The exact additional costs, which the landlord can impose on his tenants, are not in the Civil Code, but in the Operating Costs Ordinance (BetrKV) set.
Die Operating Costs Ordinance (BetrKV) sets, which expenses landlords can charge tenants via the utility bill. It is divided into two sections: The first section Are defined, which costs are apportionable and which not. In the second section will be 17 Cost items listed, which correspond to the definitions in the first section and can be billed by the landlord:
- Property tax
- Water supply costs
- Drainage costs
- heating costs
- Hot water costs
- Costs of associated heating- and hot water supply systems
- Cost of operating the person- or freight elevator
- Costs of street cleaning and garbage disposal
- Costs of building cleaning and vermin control
- Garden maintenance costs
- Cost of lighting
- Chimney cleaning costs
- Cost of the item- and liability insurance
- Costs for the caretaker
- Costs of operating the community antenna system or broadband distributor
- Costs of operating laundry facilities
- Other Charges
How are the heating costs divided among the tenants??
Die Distribution of heating costs basically depends on the type of heating. Renter, who heat their homes with electricity, normally do not receive a separate billing, but bear the costs via their personal electricity bill.
For gas, Oil-, Pellets- and district heating, the situation is different. In these cases, the landlord usually issues a statement, either separately for heating costs or as part of the utility bill. If the heating costs are billed as additional costs, The rental agreement must contain the same billing period for additional- and heating costs must be fixed. If different billing periods have been agreed, Tenants receive separate additional costs- and heating cost bills. In both cases, the same formal requirements apply.
Heating costs have a special status compared to the “cold” Additional costs such as garden maintenance, Property tax or building cleaning, as they must be billed individually based on consumption – at least partially. The landlord must 50 until 70 Calculate the percentage of heating costs depending on consumption, while 30 until 50 Percent can generally be allocated using a distribution key. Typically the costs are for the heating system, like maintenance, cleaning, Monitoring and operation, distributed in this way.
For oil heating, the landlord must indicate the oil inventory at the beginning and end of the billing period, while natural gas and district heating must be specified, how much energy was used by the respective tenant and what costs were incurred as a result.
Operating costs regulations and additional costs billing
Although in common usage, additional costs are often equated with operating costs, On closer inspection, this is not entirely correct. Under operating cost you understand all current expenses, which occur regularly and ensure proper use of the rental properties. In contrast, include extra costs all costs, which the landlord incurs in connection with the rental property. In this context, operating costs are only part of the additional costs.
The following applies when allocating additional costs: The landlord can only demand back the additional costs from the tenant, which were expressly agreed in the rental agreement. Many tenants find the term “Operating Costs Ordinance” hence in their rental agreement. There are often agreements like this “In addition to the rent, the tenant bears the additional costs in accordance with Section 2 of the Operating Costs Ordinance” to find. This clause means, that the tenant must pay all cost items, those in the second part of the Operating Costs Ordinance (BetrKV) are listed.
However, there is an exception “other operating costs“. They are not a catch-all item for all possible costs, which the landlord does not want to bear himself. The tenant only needs those “other operating costs” take over, which are expressly stipulated in the rental agreement. Possible “other operating costs” could, for example, the operating- and maintenance costs for a communal swimming pool or the maintenance of smoke detectors and fire extinguishers.
If the landlord wants to allocate the additional costs in accordance with the Operating Costs Ordinance, He does not necessarily have to attach this regulation to the rental agreement. In many rental agreements, the regulation is still included in the appendix. If the rental agreement does not refer to the operating costs agreement, The landlord must list all operating costs in the contract, which he would like to pass on to the tenant. It is not enough, if only stated in the rental agreement: “The tenant pays the additional costs.”
Operating costs regulation for rental contracts before and after 2004
The current operating costs regulations apply to all rental agreements, since the regulation came into force 1. January 2004 have been concluded and involve apportioning the operating costs to the tenant. The provisions already explained apply to these rental agreements.
But what about the contracts?, the ones before 2004 were completed? There is disagreement about old rental agreements, whether the previous regulation continues to apply or whether the new regulation automatically applies. Applicability depends on the contractual clauses. If you have such an older contract, we strongly recommend, Get advice from an experienced tenancy lawyer.
Court rulings on deadlines and § 556 BGB
Despite the accessibility of the regulations and deadlines in § 556 BGB on utility billing/operating cost billing for landlords and tenants, delay numerous landlords or. Property managers still process the bills. It even happened in many cases, that a subsequent correction was necessary.
Here are some judgments regarding the billing period for additional costs according to § 556 BGB. These judgments were in favor of the tenants.
Fall I: Missed billing deadline, Repayment of additional costs per year 2004 the tenant received an additional claim for operating costs in the amount of 185,89 € for the period from 1. November 2001 until 31. December 2002. Although the tenant was no longer living in the rental property at that time, he paid the additional demand immediately. After he learned his rights under the German Civil Code (BGB)., the tenant demanded of his former landlord, to refund the additional payment, since the one-year billing period according to § 556 Abs. 3 Sentence 2 BGB was neglected by the landlord, which was not yet known to the tenant at the time of the additional payment.
Verdict (BGH Az.: VIII ZR 94/05): The lawsuit was decided in favor of the tenant. According to § 556 Abs. 3 Sentence 2 and 3 BGB, the landlord would have the billing for the period from 1. November 2001 until 31. December 2002 at the latest by 31. December 2003 have to submit. After this twelve-month period has expired, the tenant is no longer obliged, to make additional payments. The tenant was therefore entitled to a refund due to the expiry of the deadline.
Fall II: Correction of the allocation key after the deadline has expired. In this case, an allocation of operating costs was agreed in the rental agreement. The tenant received a year 2002 an operating cost statement 658,01 € for the year 2001. The tenant left in February 2003 Objection. During the year 2003 the landlord changed the billing based on the co-ownership shares, which leads to a higher additional demand 694,14 € led.
Verdict (BGH Az.: VIII ZR 115/04): The landlord did not issue the corrected bill with the higher amount until that year 2003 out of, what after the billing deadline for the year 2001 happened. According to § 556 Abs. 3 Sentence 3 BGB, the assertion of additional claims by the landlord after the deadline has expired is excluded. The tenant is therefore only responsible for paying the lower amount 658,01 € obligated, the one for the year 2002 was billed. All corrections and additional requests after the deadline are invalid.
Fall III: Correction of the additional costs after the deadline at the expense of the tenant. In this case, the landlord made it on time in December 2004 the utility bill for the year 2003 and gave a credit of 208,73 € for the tenant. In February 2005 However, the landlady subsequently corrected items in the billing and made an additional payment of 115,06 € fest. The tenant refused to pay, whereupon the landlady sued.
Verdict (BGH Az. VIII ZR 190/06): In this judgment, the exclusion period and the billing period according to § 556 Abs. 3 Sentence 2 and 3 BGB is crucial. The landlady was not authorized, to make additional demands after the deadlines have expired. The tenant was not obliged, to make the payment.
Important to note: In principle, court rulings apply to tenants regarding the deadlines for billing operating costs:
- If the landlord makes a correction to the billing and notices this, that the tenant has credit, This credit must be paid to the tenant.
- However, if a correction leads to this, that the tenant has to pay more, The landlord is still bound to the original billing and may not demand increased additional payments after the deadline has expired, even if the correction was made after the deadline (BGH Az. VIII ZR 190/06).
- A tenant can request a refund of utility bills that have already been paid, if the deadline for delivery had already expired, when he received the bill (BGH VIII ZR 94/05).
