Additional claim for service charges in the insolvency of the tenant

The Federal Supreme Court (Bundesgerichtshof) has issued a decision on additional claims for ancillary costs in the insolvency of the tenant of residential premises.

The defendant is the tenant of a flat owned by the plaintiff in Sindelfingen. In April 2008, insolvency proceedings were opened against the defendant's assets. In May 2008, the trustee appointed by the insolvency court declared to the plaintiff with reference to section 109 (1) sentence 2 InsO that claims arising from the tenancy could no longer be served in the insolvency proceedings. By letter of 3 November 2008, the plaintiff issued the defendant with the statement of operating costs for 2007, which ended with an additional claim of €182.37. In her action, the plaintiff sought, inter alia, payment of the additional claim for ancillary costs. The Local Court granted the claim in this respect. The Regional Court dismissed the defendant's appeal. The insolvency proceedings were suspended in March 2009.

The defendant's appeal against the sentence was unsuccessful. The VIII. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for residential tenancy law, ruled that the claim for payment of additional costs for a period prior to the opening of insolvency proceedings constitutes an insolvency claim, even if the service charge account had not yet been prepared at the time of the opening of insolvency proceedings. This also applies in the case of a declaration made by the trustee prior to the preparation of the ancillary costs account pursuant to section 109 (1) sentence 2 InsO. It does not cause a claim for additional ancillary costs for a settlement period concluded before the opening of insolvency proceedings to lose its character as an insolvency claim. Therefore, the claim cannot be asserted personally against the tenant during the ongoing insolvency proceedings, but must be filed in the insolvency table - if necessary after a corresponding estimate. Since the insolvency proceedings have been suspended in the meantime, the plaintiff can again assert her claim against the defendant personally.


Judgment of the BGH of 13 April 2011 - VIII ZR 295/10

Lower courts:

Böblingen District Court - Judgment of 11 February 2010 - 19 C 2200/09

Stuttgart Regional Court - Judgment of 28 April 2010 - 4 S 60/10


Source: Press release of the BGH


Goldberg Attorneys at Law 2011

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