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Operating costs –
Current judgements of the Federal Court of Justice
Operating costs
Insurance: The costs of property and liability insurance may be shown as a single sum in the statement of operating costs. The landlord does not have to break down the individual types of insurance, e.g. building insurance, glass insurance, liability insurance for the building, for the oil tank or for the lift (BGH VIII ZR 346/08).
Complain about defects: The tenant must complain about any errors no later than 12 months after receiving the service charge statement. If he fails to do so, he must pay for the incorrect statement. This applies even if the landlord makes the same error in the statement year after year and the tenant has always successfully complained in previous years (BGH VIII ZR 185/09).
Oil tank: The costs of cleaning the oil tank are operating costs, so-called ancillary heating costs. They may therefore be passed on to the tenant via the heating bill (BGH VIII ZR 221/08).
Addressee: It is sufficient if the landlord addresses the statement of operating costs to one of the two spouses and tenants and demands the additional payment from them (BGH VIII ZR 263/09).
Water meters: Oversized water meters must be replaced if the water supplier demands meter-dependent basic charges and the water costs also depend on the size of the meter (BGH VIII ZR 97/09).
Bulky waste: The landlord may also charge the tenant for the costs of bulky waste as part of the operating costs settlement. These are costs of waste disposal (BGH VIII ZR 137/09).
Advance payments: Even if the landlord has missed the twelve-month billing deadline and is no longer allowed to make additional claims, he can adjust the monthly advance payments to the result of the late billing, i.e. increase the advance payments (BGH VIII ZR 258/09).
Inspection of receipts: The tenant has the right to inspect the receipts
on which the statement is based. Normally, they must inspect the documents at the landlord's office or at the property management company. This is different if the landlord's office and the tenant's flat are in different locations. In this case, the tenant is also entitled to receive photocopies (BGH VIII ZR 83/09).
The tenant is entitled to make copies or photographs of receipts when inspecting the billing documents for operating costs. Data protection concerns do not stand in the way of this, not even when inspecting contracts that the landlord has agreed with service providers or staff (LG Potsdam 4 S 31/11).
Rent increase
Comparative rent: The landlord must base his rent increase letter
to the local comparative rent
to the local comparative rent. The prerequisite is that
rent index is generally accessible, e.g. offered by the local
tenants' association (BGH VIII ZR 276/08).
Expert: The landlord can also justify the rent increase with the help of an expert report. In this case, the expert must normally inspect the tenant's flat. In large residential complexes, it is sufficient if he inspects and assesses a flat of the same type (BGH VIII ZR 122/09).
Rent index: Both qualified and simple rent indexes are suitable for justifying a rent increase to the local comparative rent. If there is no local rent index, the landlord may also use the rent index of a comparable neighbouring municipality (BGH VIII ZR 99/09).
Rent index and tenant investment: The landlord may not include improvements to the residential value that the tenant has made and financed himself, for example the installation of a heating system or a bathroom, in the local comparative rent (BGH VIII ZR 315/09).
Cosmetic repairs
Money back: If the tenant renovated the flat when moving out or paid a proportion of the costs for cosmetic repairs because he mistakenly believed that he was obliged to do so under the tenancy agreement, he can demand reimbursement of his costs from the landlord (BGH VIII ZR 302/07). This applies, for example, if a fixed deadline has been agreed in the tenancy agreement (BGH VIII ZR 178/05), a final renovation is required when moving out (BGH VIII ZR 316/06) or the quota clause is ineffective (BGH VIII ZR 52/06).
White walls: If the rental agreement stipulates which colours are to be used for painting during the rental period, which wallpaper may be used, etc., this is ineffective. The tenant does not have to carry out any cosmetic repairs (BGH VIII ZR 50/09). Even if ‘white ceilings’ are required, this is an inadmissible colour selection clause (BGH VIII ZR 344/08).
Professional: Contractual clauses that stipulate or give the impression that tenants must have the flat renovated by a specialist company are also invalid. They then do not have to renovate at all (BGH VIII ZR 294/09).
Parquet sealing: Removing and restoring parquet sealing is just as little part of the cosmetic repairs as painting the outside of doors and windows (BGH VIII ZR 48/09). If the tenancy agreement contains such provisions, the clause as a whole is invalid. The tenant does not have to renovate at all.
Living space
Rent increase: If the flat is actually smaller than stated in the rental agreement, the contractually agreed area is decisive. As long as the deviation in area is no more than 10 per cent. This also applies to rent increases, so that tenants in these cases have to pay for square metres that do not exist (BGH VIII ZR 205/08).
Approximate specification: It makes no difference whether the flat size is specified exactly in the rental agreement or an approximate area is stated. If the flat is more than 10 per cent smaller, the tenant can reduce the rent (BGH VIII 144/09).
Cancellation: If the flat is actually more than 10 per cent smaller than stated in the rental agreement, the tenant can terminate the contract without notice and/or demand repayment of rent paid in excess (BGH VIII ZR 142/08).
Garden area: The garden area does not count when calculating the living space of a detached house. Not even a small part (BGH VIII ZR 164/08).
Implied agreement: Even if a flat size is not expressly stated in the rental agreement, information in a newspaper advert and in a floor plan sketch provided on the flat size is binding for the landlord. The tenant can successfully invoke the pre-contractual information in the event of any deviations in floor space (BGH VIII ZR 255/09).
Rental space: If the rental agreement states ‘rental space 61.5 square metres’, for an average tenant this means the living space and not the floor area of the flat. If the flat is then only 54.27 square metres in size, the tenant has a claim for repayment due to overpayment of rent in the past (BGH VIII ZR 244/08).
Housing defects
Statute of limitations: A tenant's claim to rectification of defects in the flat or house cannot become time-barred (BGH VIII ZR 104/09).
Electrical supply: Tenants of an old flat that has not been modernised are also entitled to an electrical supply that ensures that several household appliances can be used at the same time, e.g. washing machine and hoover (BGH VIII ZR 343/08).
Impact sound: Tenants are not entitled to a rent reduction due to defects in impact sound insulation if the applicable DIN regulations have been complied with. The DIN regulations in force at the time the house was built are decisive. They determine the requirements for the standard of living that tenants can expect, at least as long as nothing else has been expressly agreed in the tenancy agreement (BGH VIII ZR 85/09). Sacrifice threshold: If the single-family home has a market value of around 28,000 euros, the tenant cannot demand the rectification of defects that would cost between 47,500 and 95,000 euros. In this case, the sacrifice or reasonableness limit for the landlord is exceeded (BGH VIII ZR 131/09).