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Rent and ancillary costs
Since the tenancy law reform of September 1, 2001, there has been greater clarity regarding heating and ancillary cost bills.
What are operating costs?
Operating costs include running costs incurred when using the property. There are 17 different types of costs, three of which relate to heating and hot water. There are also water, sewage, elevator, street cleaning, waste disposal, building cleaning, vermin control, garden maintenance, lighting, chimney cleaning, property and liability insurance, janitor, communal antenna, laundry facilities and miscellaneous.
In the brochure
„Die halbe Miete“ (13kB)
you can find out how to reduce energy costs and save money in 11 steps.
When do operating costs have to be billed?
The landlord must submit the statement of operating costs no later than 12 months after the end of the billing period. This obligation cannot be excluded or amended by the tenancy agreement. Once the deadline has expired, the landlord can no longer make additional claims unless he is not responsible for the delay.
The same applies to tenants. They must also inform the landlord of their objections to the statement within 12 months of receipt of the statement.
Tenants who pay a late utility bill in ignorance of the twelve-month billing and exclusion period can reclaim their money; the landlord is unjustly enriched. According to the law, the landlord must have settled the bill no later than 12 months after the end of the billing period. After this period has expired, the landlord cannot make additional claims. If the tenant pays anyway, he can reclaim his money.
The preclusive period only applies to subsequent claims by the landlord, but not to repayment claims by the tenant. The tenant can still demand that the landlord submit a statement of account even after the 12 months have expired. The tenant will always have reason to do so if the statement presumably shows a credit balance in his favor.
How are operating costs allocated?
The Heating Costs Ordinance applies to the distribution of heating costs. This stipulates that billing is based on consumption. The distribution of other operating costs depends on the agreement in the rental contract, for example living space or number of persons. If there is no contractual agreement, the living space applies. Operating costs may only be allocated and billed if this has been stipulated in the tenancy agreement. Repair or administration costs are not included under any circumstances.
If water in an apartment building is billed based on consumption and the main water meter in the building shows a significantly higher consumption than the sum of the apartment water meters, tenants only have to pay for the consumption measured in their apartment. The landlord may not pass the difference on to the tenants on a pro rata basis. Only up to a metering difference of 20 percent can the landlord distribute the difference between the main water meter and the apartment water meters proportionally among the tenants according to the ratio of the readings of the apartment water meters.
What amount of operating costs may be incurred?
For the first time, the law lays down the principle of economic efficiency for operating costs. The landlord must act in an “economically reasonable” manner when managing his property, for example when hiring a janitor or taking out insurance.
Check first – then pay
Heating bills are often incorrect. Always check the amount – even if you are reimbursed – using the original receipts. Find out more about the most common billing errors here. We have also compiled an overview of recent rulings by the Federal Court of Justice.
Defective operating cost statement
The differences between formal and substantive defects in an operating cost statement are small. However, the legal consequences are significant.
If the statement is formally invalid, for example because the allocation key is completely incomprehensible, the tenant does not have to pay. The landlord must issue a completely new statement. The landlord cannot submit a new statement after the one-year period has expired.
If the content of the statement is incorrect, the landlord can still make improvements and corrections. Errors in the content of the statement are, for example, costs billed although they have not been agreed or although a flat rate has been agreed in the tenancy agreement, or the advance payments have been calculated incorrectly in the statement or the advance payments actually paid have not been taken into account (BGH VIII ZR 240/10).
No service charges
Regardless of what is stated in the tenancy agreement, the following types of costs must not appear in any operating cost statement: Administration costs, maintenance or repair costs, maintenance reserves, management surcharges, landlord's contributions to the landowners' association, bank charges, postage costs, repair costs, loss of rent or legal expenses insurance.
Tenants do not have to pay these costs, as they are not operating costs.
Costs for repairing the heating pump must be paid by the landlord. Such repair costs are not maintenance costs that would have to be paid by the tenant via the heating bill. Nor can the costs of replacing lamps and light bulbs be billed under “general electricity” or “lighting costs”. Ultimately, these are maintenance costs that tenants never have to pay.
Late payment
Anyone who does not transfer the rent regularly and falls into considerable arrears risks termination without notice due to late payment. According to the law, the landlord may terminate without notice if the tenant is in arrears with more than one month's rent on two consecutive dates or over a longer period of time with an amount equal to two months' rent. However, even if rent arrears of several months' rent have actually accumulated, the tenant can still save themselves from termination without notice and an action for eviction by the landlord. If the tenant pays the rent arrears or if an authority he has engaged takes over the rent arrears, the landlord no longer has grounds for termination without notice. If the landlord has already given notice of termination, the termination becomes ineffective if the rent is paid in arrears. However, the tenant can only save himself once in two years by paying the rent arrears at a later date.