On 21 January 2008, the Federal Supreme Court (BGH) ruled that even if an operating costs statement is sent by post, timely dispatch of the statement is not sufficient to comply with the one-year settlement period stipulated in Section 556 (3) sentence 2 of the German Civil Code (BGB), but that the statement must be received by the tenant within the period.
§ 556 BGB (agreements on operating costs) reads:
(3) The advance payments for operating costs shall be settled annually; the principle of economic efficiency shall be observed. The tenant shall be notified of the statement of account by the end of the twelfth month after the end of the accounting period at the latest. After expiry of this period, the assertion of a subsequent claim by the landlord shall be excluded, unless the landlord is not responsible for the late assertion. (...)
Furthermore, the Federal Court of Justice has confirmed its case law according to which there is no prima facie evidence of receipt of the item in the case of letters placed in the post.
The plaintiffs were tenants of a flat in Berlin rented by the defendant. After the end of the tenancy, the plaintiffs demanded the payment of a credit balance of € 355.26. The defendant, for its part, asserted an additional claim for € 625.71 from an operating costs statement for the year 2004. For its part, the defendant asserted an additional claim in the amount of € 625.71 from an operating costs statement for the year 2004. It declared a set-off against this claim and filed a counterclaim for the amount of € 270.45 exceeding the claim. The plaintiffs claimed that the defendant had not complied with the settlement period under § 556.3 sentence 2 BGB because the plaintiffs had not received the service charge statement for 2004 dated 21 December 2005. The defendant submitted evidence that the statement had been sent in time by posting. The Local Court sentenced the defendant as requested and dismissed the counterclaim. The district court dismissed the defendant's appeal.
The defendant's appeal against this decision was unsuccessful. The VIII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for residential tenancy law, ruled that the defendant's subsequent claim was excluded. Civil Senate of the Federal Court of Justice (BGH), which is responsible for residential tenancy law, ruled that the defendant's subsequent claim pursuant to Section 556 (3) sentence 3 of the German Civil Code (BGB) was excluded because the defendant had not complied with the one-year settlement period pursuant to Section 556 (3) sentence 2 of the German Civil Code (BGB). In order to comply with this time limit, the tenant must still have received the statement of operating costs within the time limit; timely dispatch of the statement is not sufficient (as expressly stated in the government draft of the Tenancy Law Reform Act, BT-Drs. 14/4553, p. 51). The fact, proven by the defendant, that its partner had posted the statement of operating costs on 21 December 2005 as a letter and sent it to the plaintiffs does not constitute prima facie evidence that the plaintiffs received the statement of operating costs in due time. According to the established case law of the Federal Court of Justice, there is no prima facie evidence for the receipt of letters sent by post.
The assertion of the additional claim by the defendant would therefore not be excluded pursuant to § 556 (3) sentence 3 BGB only if the defendant was not responsible for the late assertion. However, this condition is not fulfilled. The provision of § 278 BGB applies to the obligation to represent within the meaning of § 556 (3) sentence 3 BGB, so that the landlord is also responsible for misconduct on the part of his vicarious agents. Here, the post office was to be regarded as the defendant's vicarious agent for sending the statement. Contrary to the defendant's view, § 278 BGB is not to be applied restrictively and the exceptional case regulated in § 556 (3) sentence 3 BGB is not to be generally assumed if unexpected and unforeseeable delays or losses of mail occurred for the landlord during the postal route. This would result in the fact that with regard to the exclusion of additional claims in all cases of postal dispatch - apart from exceptional situations (e.g. postal strike) - the timely dispatch of the statement of account would suffice to meet the deadline. However, this would be contrary to the express regulatory intention of the legislator. Rather, it depends on the concrete circumstances of the individual case whether a delayed postal delivery or a loss of the postal item is due to the fault of the post office.
Judgment of the Federal Supreme Court of 21 January 2009 - VIII ZR 107/08
Previous instances: AG Charlottenburg - Judgment of 8 March 2007 - 218 C 517/06; LG Berlin - Judgment of 29 January 2008 - 65 S 176/07 Source: BGH press release no. 16/2009 of 21 January 2009.
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
