Operating costs (real estate)
Operating costs are costs that the owner incurs as a burden on the property. They are to be borne by the owner and represent a subset of the management costs of a property. This basically also applies if a property has been rented. However, it is usually agreed in the rental agreement that the tenant has to reimburse the landlord for the operating costs. Paragraph 2, Sentence 1 of the German Civil Code ( BGB) provides for the option of either agreeing advance payments with a later billing or providing an appropriate flat rate with which the total operating costs are covered.
Concept of operating costs
According to the legal definition in Operating Costs Ordinance (BetrKV), operating costs are the costs that the owner or person entitled to leasehold through ownership or leasehold on the property or through the intended use of the building, the auxiliary buildings, facilities, facilities and the property. First of all, this stipulates that operating costs are only those costs that (1) arise from ownership (or leasehold) on a property (2). Administration costs as well as maintenance and repair costs are explicitly excluded .
The enumerative (ie not limited to, not necessarily complete) demonstratively, namely the ongoing public burdens of the property (one of them in particular the land tax), the cost of water supply, drainage, heating, central hot water supply system , the operation of elevators, street cleaning and garbage disposal, building cleaning and vermin control, garden maintenance, lighting in communal rooms, chimney cleaning, property and liability insurance, for the operation of the communal aerial or the TV cable connection, the operation of the facilities for laundry care and other operating costs .BetrKV lists the general operating expenses kinds
An important and, in practice, often controversial demarcation concerns the distinction between allocable (= allocable) operating costs and non-allocable maintenance or repair costs. The latter are basically included in the rent and can therefore not be passed on to the tenant because they are conceptually no operating costs. However, costs for maintenance and inspection can be passed on. The prerequisite is that there are ongoing expenses (e.g. maintenance of the elevator system). An exception are small repair clauses , with which the costs for repairs and fault clearance up to an amount specified in the rental agreement are passed on directly to the tenant.
Older rental contracts often contain a reference to Section 27 in conjunction with Annex 3 II. BV . In this case, it must be determined by interpretation whether these old provisions continue to apply here or whether the 2003 Operating Costs Ordinance should be used. The question is important because the catalog of apportionable types of operating costs in the Operating Costs Ordinance has expanded by four points compared to the II. Calculation Ordinance.
Operating cost agreement
The apportionment of operating costs to the tenant requires an effective contractual agreement between the landlord and the tenant ((1) sentence 1 BGB). The agreement must be sufficiently specific; that is, it is not enough for the parties to agree that the tenant will bear “the (usual) additional costs of the apartment”. The types of costs to be borne must be listed in detail. The case law allows the reference to the annex to § 27 II. BV or to the catalog in BetrkV to suffice, even if it is not attached to the contract. The requirement of the express agreement of the types of costs applies in particular to the item of "other operating costs" ( No. 17 BetrKV), which are not to be understood as a catch-all for all conceivable types of costs that are listed in No. 1 to 16 are not included. Rather, the costs to be allocated must be expressly listed in the contract, because otherwise the requirement of certainty would be undermined. These costs must also be incurred regularly.
It is not necessary to agree on an allocation key. If it is missing in the contract, the apportionment of the costs in the case of apartments must be based on the living space in accordance with(1) sentence 1 BGB, i.e. according to the proportion of the living space of the apartments in the total living space of the property. If the parties have agreed on a different allocation key, this generally applies. Something different applies, however, if devices for measuring consumption (e.g. water meters) are available. In this case, billing must be based on consumption, regardless of the contractual agreement.
A subsequent change to the allocation key is - except in the special case ofParagraph 2 BGB - only possible with the consent of the tenant; the previously accepted unilateral right of the landlord ( BGB) no longer exists for contracts concluded after September 1st, 2001. In the case of rental contracts that had been concluded earlier, the landlord could, if nothing was contractually agreed, determine the distribution key in the first settlement at its reasonable discretion. The allocation key can only be changed for a new accounting period and not for the current one. Accordingly, the tenant can only request the change with effect for the future.
The agreement can either provide for advance payments in the form of advance payments, which the tenant has to make in addition to the so-called cold rent (that is the rent for the apartment without considering the ancillary costs) during the accounting period and which is later to be settled by the landlord; or a flat-rate operating cost has to be paid - in which case there is no billing. Both lump sums and advance payments may only be agreed in an appropriate amount. Both have to be adjusted if the costs change ( BGB). In the case of lump sums, this is only possible if the adjustment has been agreed in the rental contract ( (1) BGB), advance payments may only be adjusted after settlement ( (4) BGB).
If there is no operating cost agreement, the operating costs are included in the rent (so-called gross rent).
Operating costs are to be billed annually if advance payments have been agreed. The details of this have been regulated in(3) BGB since the 2001 tenancy law reform .
According to case law, the utility bill must contain at least the following information :
- a summary of the total costs for the entire property to be billed for;
- the specification and explanation of the underlying distribution key;
- the calculation of the share that is allotted to the rented apartment and that the tenant should bear (for each type of operating cost);
- the deduction of the tenant's advance payments.
A statement that does not meet these requirements is already formally ineffective and is therefore not due. In the worst case, this can mean that later claims are no longer possible. In a decision of April 28, 2008, the BGH ruled that deviations in the area data do not necessarily lead to a formally incorrect operating cost statement.
The billing must be comprehensible, i.e. it must be understandable and verifiable in and of itself. The costs must be identified in such a way that they can be easily assigned when the documents are checked (see below).
The billing must refer to a specific billing period, which does not exceed one year. The landlord is not bound by the calendar year. In the case of apartments, it must be available no later than one year after the end of the accounting period. Otherwise the landlord can no longer claim back payments ( receipt , of the statement.Paragraph 3, Clause 2, 3 BGB). The deadline is met by submitting a formally effective statement, that is, the statement can contain content-related ("material") errors; The landlord can still correct this after the one-year period has expired. The tenant, however, can still claim back overpaid advance payments for operating costs even after the one-year period has expired. However, he must raise objections to a statement that the landlord has submitted within one year of receipt, i.e.
The landlord must provide the tenant with a utility bill within twelve months of the end of the billing period. If he does not do this, the tenant can make use of his right of retention by suspending further advance payment of additional costs until the landlord has fulfilled his obligation.
Vacant apartments must be included in the contribution. The owner bears the costs for vacant units.
When settling operating costs, the principle of economic efficiency must be observed ((3) sentence 1 BGB). Uneconomical costs are not apportionable. They are deducted from the billing to the extent to which they prove to be uneconomical.
Otherwise applicable to the allocation of heating and hot water heating regulation .
Checking the utility bill
The tenant has the right to inspect the receipts on which the billing is based at the landlord's in order to convince himself of the correctness of the billing. The landlord is obliged to allow sufficient time for inspection. The tenant must - contrary to the prevailing opinion in literature and jurisprudence - go to the landlord for inspection; he can only exceptionally, in good faith, request the receipt in the form of copies. Regardless of this, the majority of the literature recommends that the landlord continue to send copies of receipts to the tenant upon request. At the latest in the process, the landlord must provide the receipts - in the form of copies - in accordance with, ZPO to the files.
Special features of rented condominiums
In the case of rented condominiums, it should be noted that the property management company prepares the billing for the community of owners according to principles other than those presented above. In residential property law, the so-called outflow principle applies , according to which costs are to be included in the settlement of the house money in the year in which they were spent. In tenancy law , the so-called performance principle can also be applied in addition to the outflow principle . Here, the operating costs are to be claimed in the accounting period in which the relevant services were provided. In case of doubt, this can mean that the administrator's billing cannot be used as a basis for the operating costs billing for the rented condominium.
Remuneration for the administrator is not permitted. This applies to all rental contracts for living space, but must be observed in particular for condominiums.
It is important that real estate costs can only be passed on to the tenant in accordance with the BetrKV. This can e.g. B. be questionable in the case of caretaker costs if these also include costs of the caretaker for maintenance / repairs in the WEG's house charges. Such cost shares are not apportionable according to the BetrKV.
A possible deviation in the billing standard is also problematic. While the share of co-ownership largely applies in the WEG, but can also be billed according to area proportions, the area proportions are often used as a basis in rental contracts (in accordance with the legal principle,Paragraph 1 BGB). It is important to ensure that the rental agreement is identical (agreement in accordance with Section 556 a, Paragraph 1 of the German Civil Code). Accordingly, in the case of resolutions in the WEG to change the operating costs according to para. 3 WEG to take into account the interests of renting owners; they must transfer any changes to the distribution key to their tenants, i.e. be able to carry out contractual adjustments there (see Section 556 a (2) BGB).
Operating cost table
With the right to inspect the original receipts after submitting a statement, tenants have an important means of checking. The German Tenants' Association and its regional associations also provide nationwide and state-wide operating cost tables for apartments, which can also serve as guidelines for landlords within the framework of the economic efficiency principle.
The operating cost tables give an overview of the operating costs actually billed by the landlords in a certain period, converted per square meter of living space and month. They are drawn up on an empirical basis from the consulting practice of the tenants 'associations in the German Tenants' Association and updated annually. With the help of an operating cost table, the general cost level of a settlement can therefore be checked in order to detect conspicuous "outlier values", which it is worthwhile to carry out a more detailed examination. The conclusion from a statistically reported value in an operating cost table to the actually expected costs is only possible to a limited extent, because the specifics of the specific property cannot of course come into play in a statistical evaluation. A check is always to be carried out in each individual case. Profitability is not already impaired by the fact that the values in an operating cost statement differ from the average values in an operating cost table.
A distinction must be made between this and operating cost tables, which are partly drawn up by the municipalities and show the operating costs for buildings of a certain age or certain equipment in the urban area. Similar to rent indexes , these can enable representative statements to be made.
- Norbert Eisenschmid, Franz-Georg Rips , Dietmar Wall: Comment on operating costs. Sections 556, 556a, 560 BGB, Operating Costs Ordinance. Living space regulation. 2nd Edition. DMB-Verlag, Berlin 2006, ISBN 3-933091-59-4 .
- Deutscher Mieterbund: The second rent. Heating costs and cold ancillary costs. Costs, deadlines, allocation. Sample billing and checklists. DMB-Verlag, Berlin 2008, ISBN 978-3-933091-73-4 .
- Kai-Jochen Neuhaus: Handbook of business premises rent. Law - Practice - Administration. 3rd, revised and significantly expanded edition. ZAP-Verlag, Münster 2008, ISBN 978-3-89655-321-8 , chapter operating costs for commercial rent.
- Ulrich Ropertz: Additional rental costs. Check billing - know rights - reduce operating costs. Consumer advice center NRW, Düsseldorf 2009, ISBN 978-3-940580-31-3 .
- Michael J. Schmid: Handbook of additional rental costs. 11th, revised edition. Luchterhand, Cologne 2009, ISBN 978-3-472-07508-0 .
- BGH WuM 1982, 207 = ZMR 1982, 108 = NJW 1982, 573.
- BGH, judgment of April 28, 2008 - VIII ZR 262/05.
- BGH November 17, 2004 - VIII ZR 115/04, WuM 2005, 61 = NZM 2005, 13 = ZMR 2005, 121 = NJW 2005, 219; Lützenkirchen WuM 2006, 63, 72.
- mietrecht.org: right of retention due to non-creation of the utility bill (and possible default in payment)
- BGH, March 8, 2006 - VIII ZR 78/05 , WuM 2006, 200 = ZMR 2006, 358 = NZM 2006, 340 = NJW 2006, 1419.
- Fenn: The tenant's right to receive copies of documents according to the new BGH case law. WuM 2006, 482 mwN in footnote 8 on p. 483.
- Langenberg, the tenant's control rights according to the basic decision BGH NZM 2006, 340, NZM 2007, 105, 109 mwN
- BGHZ of February 20, 2008, Az .: VIII ZR 49/07; Schmidt-Futterer 2011, § 556 Rn. 304, 306.
- Schmidt-Futterer 2011, § 556 Rn. 304; Blank, annual billing and operating cost billing, WuM 2004, 446, 447ff.
- Federal Court of Justice. Judgment of July 6, 2011 - Az .: VIII ZR 340/10 . Marg. 18. Retrieved November 4, 2011.