The Federal Court of Justice (BGH) has made two decisions on the question of whether the landlord is entitled to increase advance payments for operating costs even if the statement of account on which it is based contains errors.
In both proceedings, the plaintiff as landlord demanded the eviction and surrender of the flats held by the defendant tenants. In both cases, the plaintiff increased the advance payments for operating costs with the operating costs statement for 2004 and also adjusted them in the following years to the respective statement result. The plaintiff's statements contained errors in content, which the defendants objected to and the correction of which did not leave a balance to the disadvantage of the defendants. In the proceedings VIII ZR 245/10 the defendants paid only a part of the increase amounts of the advance operating cost payments demanded by the plaintiff since 2006. In the proceedings VIII ZR 246/10 the defendant did not pay the increase amounts in total. The plaintiff terminated both tenancies without notice, alternatively with notice, due to a payment arrears based on the outstanding advance payments for operating costs. The landlord's actions for eviction were dismissed in the lower courts.
The plaintiff'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 landlord can only adjust advance payments after a service charge settlement. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for residential tenancy law, ruled that the landlord is only entitled to adjust advance payments after a service charge settlement pursuant to Section 560 (4) of the German Civil Code (BGB) to the extent that it is based on a settlement that is correct in terms of content.
Up to now, the senate has taken the view that a formally correct statement of account is sufficient for an adjustment of the advance payments, so that clarity about the amount of the advance payments can be achieved without time-consuming disputes about the correctness of the statement of account. However, the senate does not adhere to this. This view does not sufficiently take into account the purpose of the adjustment of the advance payments, which is to assess the advance payments as realistically as possible according to the expected settlement result for the next settlement period. On the contrary, such a procedure would open up the possibility for the landlord to collect advance payments on the basis of an incorrect statement of account in an amount to which he would not be entitled if the statement of account were correct.
In addition, the landlord is obliged to provide a correct statement of account and it is not acceptable that a contracting party derives advantages from the violation of its own contractual obligations. In cases like the present one, in which a rent arrears in an amount relevant for termination builds up due to the increases of the advance payments, these could even lie in the fact that the landlord could terminate the tenancy due to rent arrears, which were solely based on the fact that he had issued an incorrect statement of account in breach of duty, which unjustifiably burdened the tenant with excessive operating costs.
Judgment of the BGH of 15 May 2012 - VIII ZR 245/11
Lower courts:
AG Hoyerswerda - Judgement of 21 October 2010 - 1 C 73/10;
LG Bautzen -Judgement of 22 July 2011 - 1 S 126/10;
and
Judgment of the Federal Supreme Court of 15 May 2012 - VIII ZR 246/11
Lower courts:
AG Hoyerswerda - Judgment of 15 July 2010 - 1 C 144/10
LG Bautzen - Judgment of 22 July 2011 - 1 S 95/10
Source: Press release of the BGH
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
