Objections against operating cost statements - Every year again

The Federal Court of Justice (BGH) has ruled that a residential tenant must raise an objection against an operating costs statement prepared by the landlord within the twelve-month period provided for this purpose even if he has already raised the objection, which is the same in substance, against previous operating costs statements.

The plaintiff demanded back payment of operating costs from the defendants, his tenants. In October 2004, the landlord had prepared a statement of operating costs for the year 2003, in which he had, among other things, allocated the property tax proportionately to the tenants. The tenants objected, inter alia, that they were not obliged to pay these costs under the terms of the tenancy agreement. The tenants also raised this objection, among others, with regard to the statement of operating costs for the year 2004, which was prepared in November 2005. Finally, in December 2006, the landlord drew up a statement of operating costs for the year 2005, in which he again allocated the property tax proportionately to the tenants. The tenants did not comment on this statement.

In his action, the landlord asserted the outstanding additional claims from the operating cost accounts for the years 2003 to 2005 - a total of approximately € 800. The district court dismissed the action with regard to the years 2003 and 2004 on the grounds that the property tax was not apportionable, as the interpretation of the lease agreement showed. With regard to the year 2005, the district court ordered the tenants to pay the outstanding amount of approximately €270 because the defendants had failed to raise objections to the statement of operating costs for the year 2005 within the statutory period. The district court rejected the tenants' appeal.

The tenants' appeal was unsuccessful. The VIII. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for residential tenancy law, ruled that a renewed objection to the statement of operating costs for the year 2005 with regard to the property tax apportioned to the defendants on a pro rata basis was not dispensable because the defendants had already objected in due time to the statements of operating costs for the previous years 2003 and 2004 that they did not owe the reimbursement of pro rata property tax. Pursuant to section 556, subsection 3, sentence 5 of the German Civil Code (BGB), the tenant must notify the landlord of any objection he wishes to raise to an operating costs statement for a particular year within twelve months of receipt of that statement. The objection to an earlier statement of operating costs does not make such notification superfluous even if the objection is the same in substance. The aim of the law is to obtain clarity about the claims arising from the operating costs statement for a particular year by the expiry of the deadline. This objective would be missed if, due to the objection to an earlier statement, it would no longer be possible to demand that a later statement be (re)objected to within the period running for this statement. The renewed assertion of an objection already raised against an earlier settlement of operating costs within the period running for the later settlement year is therefore required in order to achieve the legislator's objective of legal certainty through expiry of the period.

 

Judgment of the Federal Supreme Court of 12 May 2010 - VIII ZR 185/09

Lower courts:

AG Mannheim - Judgement of 17 December 2008 - 8 C 245/08

Mannheim Regional Court - Judgment of 3 June 2009 - 4 S 17/09

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

 

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