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Operating costs –
The most common billing errors
All apartments count
If the landlord himself lives in an apartment in the apartment building, he must contribute to the operating costs on a pro rata basis. The landlord also pays for vacant apartments in the building.
Inspection of receipts
If the landlord runs a paperless office in which original documents are regularly scanned and destroyed after three months, it is generally sufficient for the landlord to present printouts of the receipts when inspecting the receipts as part of the review of a service charge statement - unless the tenant can demonstrate reasonable doubt as to whether these printouts match the originals (LG Berlin 63 S 192/17).
Gutter cleaning
The costs for gutter cleaning can be “other operating costs” that must be paid by the tenant if agreed in the contract (BGH VIII ZR 167/03 and VIII ZR 146/03). The prerequisite is that the gutter cleaning must be carried out at regular intervals, e.g. because the building is surrounded by tall trees. The costs of gutter cleaning can only be passed on to the tenants as “other operating costs” if this is expressly agreed in the tenancy agreement. This means that the term “gutter cleaning” must appear in the tenancy agreement among the types of operating costs that can be allocated.
Condominiums
Tenants of a condominium in particular often find the items administration costs and maintenance costs or reserves in their statement. The landlord has then simply forwarded the statement of the condominium owners' association to the tenants. This is not possible. Owners must pay these costs. Tenants do not.
Elevator costs
Ground floor tenants must also contribute to the elevator costs. Landlords may pass on the costs of operating an elevator to all tenants in the building as operating costs if this has been agreed in the rental contract. This also includes the first floor tenants. However, if the landlord has not previously included the tenants of this apartment in the elevator costs, he may not do so in the future either.
Garden maintenance costs
Only the recurring (i.e. ongoing) garden maintenance costs
are operating costs. If the garden is completely redesigned, the tenant does not have to pay for this.
If it is agreed in the tenancy agreement that the tenants must carry out the gardening work, the landlord cannot claim garden maintenance costs from his tenants via the annual utility bill. Neither is possible. If the landlord still carries out independent work, he cannot charge any costs for this.
Costs for the purchase of flowers and plants are not ancillary costs. Although it can be agreed that the tenant must pay the costs of garden maintenance, this only includes the ongoing garden maintenance costs and the costs of replacing plants and wood, but not the costs of the initial purchase.
If tenants are obliged to maintain the garden according to the tenancy agreement, they only have to carry out simple tasks such as mowing the lawn, weeding or digging up beds. Tenants can only be called upon to carry out further garden maintenance work, such as laying new lawns and pruning shrubs, and possibly even pruning trees or cutting down diseased and rotten trees, if the tenancy agreement expressly stipulates otherwise and in addition.
The costs of tree maintenance/tree inspection, i.e. checking the stability of trees, are not garden maintenance costs and are not operating costs that can be passed on to tenants. Such inspection activities have nothing to do with garden maintenance costs (AG Bottrop 11 C 59/14).
Commercial premises
Shops, companies or offices often incur higher operating costs than flats. For example, property taxes are higher. A hairdressing salon or a restaurant also require more water. Shops with large shop windows cause higher insurance premiums. The landlord must take this into account when allocating costs. Residential tenants only pay what is proportionately attributable to the rented flats if the costs for businesses are significantly higher.
Caretaker
Garden maintenance and/or stairwell cleaning are typical caretaker tasks. If these types of costs are billed separately, even though there is a caretaker, you must follow up, otherwise there is a risk of double payment.
Heating costs
Heating costs must be billed according to consumption. If this is not done, the tenant may reduce the share of heating costs attributable to them by 15 per cent (BGH VIII ZR 310/12). If billing is not based on consumption but the consumption in the building is estimated because the metering systems have failed, the tenant can deduct 15 per cent from their heating costs (BGH VIII ZR 261/06).
Costs of the billing period
In principle, only those costs may be included in the current statement of operating costs that originate from the billing period in question. Statements that are two or three years old may not be "cheated" into the statement.
Vacancy
The landlord must pay the pro rata operating costs for vacant flats. Be careful if the total living space of the house (square metres) is suddenly lower than in the previous year. Then there is every indication that the landlord only wants to allocate the costs to the rented flats.
Girl for everything
In most cases, caretakers are "girls for everything". This means that they almost always carry out minor repairs and take on administrative tasks. However, these are not operating costs. Appropriate deductions must then be made from the caretaker costs.
Metering differences for water
The main water meter in the house normally reads more than the flat meters as a whole. Up to a deviation of 20 per cent, the measurement result of the main water meter is generally used. In the case of larger deviations, the causes must be clarified and only the result of the apartment meters can be used.
result of the flat meters can be used.
Waste disposal
Rental costs for rubbish bins are not operating costs, nor are acquisition costs for the bins.
Subsequent property taxes
If the local authority subsequently levies property tax, for example in the case of new buildings or if the rental property has been extensively modernised, converted or extended, or after a tax exemption or concession has ceased to apply, the following applies: The landlord can only pass on the subsequently levied costs to the tenant for the current and previous calendar year. He has three months to do so. The prerequisite is that the property tax also relates to a period in which the tenant has already lived in the property.
Repair costs
The tenant does not have to pay repair costs. Repairs in the house or flat are always the responsibility of the landlord and are never operating costs.
Pest control
One-off costs, for example for cleaning an infested flat or house, are not operating costs. Costs that can be proven to have been caused by a specific tenant are also not apportionable.
Underground car park – flat rental price vs. service charge settlement
If a rental agreement for an underground car park includes a flat-rate rental price that covers all costs incurred, a new owner may not demand an additional payment when settling the ancillary costs for the underground car park. This is because an agreement on a flat rate for operating costs can only be changed by mutual agreement. The landlord also only has the right to increase the flat rate if this right is expressly agreed in the tenancy agreement. A missing agreement is permanently binding and applies even if individual operating costs increase considerably.
Administration costs
Administrative costs, such as property management costs, bank charges, postage, interest, telephone, etc. are never operating costs. The tenant does not have to pay, regardless of what the tenancy agreement says.
Insurance
The premiums for building and liability insurance are operating costs. However, the costs of other landlord insurance policies, such as legal expenses, household contents or loss of rent insurance, are not.
Maintenance costs
Maintenance costs, for example for a lift, are operating costs.
However, the term maintenance costs often also includes repair costs, which the tenant never has to pay. Be careful with so-called full maintenance contracts. Full maintenance also includes carrying out repairs. Therefore, up to 50 per cent can be deducted here due to hidden repair costs.
Flat size
The distribution of costs according to living space depends on the size of the flat stated in the tenancy agreement. However, if the actual size of the flat is more than 10 per cent smaller, this is decisive. It is worth measuring.