Heat contracting

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Heat contracting has been an energy supply service that has been used by homeowners and landlords in Germany in particular since the 1990s and is usually offered by medium-sized heating construction companies as well as public and private energy suppliers.

The core of the business (English contract ) is the outsourcing of investments for the initial construction or modernization of central heating systems from the building owner to an entrepreneur (English contractor ). In a heat supply contract with a long term (10-15 years), the house owner grants the contractor the exclusive right to supply his tenants or the property with heating and, if necessary, hot water from a central heating system . The heat supplier (contractor) is able to allocate his investments in the heating systems to 10-15 annual rates due to the long terms. The heat contracting market in Germany has a sales volume of around € 1 billion per year.

With so-called partial contracting , the heat supply is taken over by the contractor; with full contracting , the system technology is also operated by the contractor and the costs are settled directly with the tenant.

Reasons for choosing heat contracting

Thousands of landlords have made use of this new service in Germany in recent years. The advantage for the landlord is that no own funds are required, and on the other hand, the tenant-landlord dilemma caused by German tenancy law can be avoided in this way . Under certain circumstances, there is also no need for heating billing or the risk of payment default.

Risks are transferred to the contractor that the landlord / owner would otherwise have to bear. As a rule, a contractor plans and builds the heat supply system for the building to be supplied precisely and efficiently, since the generation, exhaust gas, standstill losses and possibly also the distribution losses of a supply system are on the side of the contractor.

Economic consideration

If one looks at the model from the cost-benefit side, it is noticeable that there are no clear benchmarks for the equivalence ratio between performance and consideration. Even if the contractor in tenancy law contracting simply uses an outdated technology of the landlord (e.g. an outdated boiler ) for heat generation via a lease contract, i.e. in extreme cases only the plant is being operated by an intermediary third party, this is legally considered as Heat contracting understood. Since the landlord simply passes the costs on to the tenant, there is no incentive for the modernization of heat generation technology arising from the conflicting interests of the parties in the triangular relationship between tenant - landlord - contractor.

With partial contracting, for example, the contractor does not invest anything, but the landlord receives a lease payment for the investment made. The tenant must bear the additional costs included in the heat purchase costs. It will be the task of the legislature to create the framework conditions that promote more transparency and make it seem sensible for the contractors to actually invest in the modernization of heat generation technology - to save costs when generating heat.

criticism

As part of the 2001 tenancy law reform , the legislature avoided a legal regulation, so that heat contracting currently exists in a legal gray area . Both tenant protection associations and the contracting industry itself are hoping for legal clarity from a supreme court decision by the Federal Court of Justice (BGH).

The cost burden is also higher for the tenant: Since energy is saved with a new, modern heating system because of the better efficiency , the " investment cost surcharge", which is distributed over the years and billed as part of the annual heating cost bill, falls to most tenants during a plausibility check of Heating costs do not increase immediately.

There are no efficiency gains and no cost advantages compared to implementation on your own, but disadvantages due to the long-term commitment to one energy source.

The heat contracting is limited to the system technology. This results in potential savings of around 20% in the heating sector. If no additional building insulation measures (windows, exterior walls) are taken, the greatest potential for savings will remain unused.

Heat contracting in case law

Decisions by the Federal Court of Justice until 2006

Four cases were ready for decision by the highest court in 2005 and 2006.

With a judgment of April 6, 2005 due to a case in Cologne-Mülheim , the BGH set the contracting industry into excitement because, in the opinion of the judges, the often significantly higher costs of contracting compared to heating the property on their own by the landlord or manager only then on the Tenants can be relocated if this has been agreed accordingly in the rental agreement (BGH, judgment of April 6, 2005, Az. VIII ZR 54/04). Basically, it is about how a so-called “unreasonable double burden” with investments for the heating system at the expense of the tenant is legally handled.

With a second judgment in the summer of 2005, the BGH indicated with judgment of June 1, 2005 (Az. VIII ZR 84/04, WM 2005, p. 456) on a case in Dresden that the solution is currently more on the side of the Strives for heating costs (heating costs). Specifically, this means that the BGH cannot or does not want to see a reduction in the net rent without the proportionate investment in the heating system as the (actually obvious) solution.

The expected appeal against a ruling by the Berlin Regional Court on August 30, 2004 was canceled because the landlord withdrew the appeal before the start of the negotiations after receiving preliminary information from the BGH that was unfavorable for them.

The legal dispute since autumn 2002 between the tenants represented by the tenants' association Bochum, Hattingen and the surrounding area against the real estate company Viterra AG (since 2005 owned by Deutsche Annington ) was initially decided favorably by the Bochum regional court for the tenants. The Federal Court of Justice confirmed the position of the Regional Court (BGH, judgment of April 6, 2005, Az. VIII ZR 54/04). Around 8,000 households are directly affected by this decision.

New case law since 2007

With its judgment of June 27, 2007 (Az. VIII ZR 202/06, NJW 2007, 3060-3061), the BGH made the implementation of heat contracting much easier.

The lease agreement required by the BGH in its earlier case law is now considered to be given if the lease refers to Appendix 3 to Section 27 II. BV with regard to the operating costs to be borne by the tenant . Such a reference is contained in a large number of rental contracts, so that contracting can become significantly more important in the future. Appendix 3 to § 27 II. BV has been replaced by the same provision of § 2 Operating Costs Ordinance on January 1, 2002. The legal situation is therefore the same for rental contracts that refer to the Operating Costs Ordinance. For old rental contracts before March 1, 1989, the reference to Annex 3 to Section 27 II. BV only enables the conversion to district heating, since the version at that time did not include the operation of the central heating system in the house by a contractor. In the case of tenancies in the new federal states that were concluded before October 3, 1990, the landlord was able to carry out an operating cost apportionment in accordance with Section 1 of the Ordinance on Operating Costs from 1991.

The changeover in the current tenancy remains problematic, even if the contract contains a general reference to all types of operating costs. The tenant's consent to subsequent conversion is required. In the case of district heating - probably with a view to the overriding aspect of increasing energy efficiency - the BGH allowed a general reference to Section 27 II. BV as approval / contractual basis for the subsequent conversion as well. However, this case law is doubtful when it comes to provisions in general terms and conditions. This would give the landlord the right to change the cost structure outside the system, which would protect tenants due to the restrictions in the regulations on the General Terms and Conditions (Sections 304 ff would undermine.

Violations of the economic efficiency principle can practically not be reprimanded successfully due to the high demands of the BGH on such a complaint.

Web links

Individual evidence

  1. ↑ Matthias Meinefeld: Strategic Success Factors for Contracting Offers from Energy Supply Companies ( online ).
  2. ^ Ostertag: The economic potential of heat contracting. In: Ulrich Bemmann, Sylvia Schädlich (Ed.): Contracting Handbuch 2003. Fachverlag Deutscher Wirtschaftsdienst, Cologne 2002, ISBN 978-3-87156-555-7 , pp. 62 and 68.