The Federal Court of Justice (BGH) has ruled that the readings of an uncalibrated water meter may be used in the context of the operating costs statement if the landlord can prove that the readings displayed are accurate.
The plaintiffs had rented a flat from the defendants in Bautzen from September 2004 to February 2008. The water meter belonging to the flat was not calibrated in 2006 and 2007. The plaintiffs are of the opinion that the measured values determined by the device are unusable according to § 25 para. 1 sentence 1 no. 1a EichG (German Calibration Act) and that the defendants are therefore not allowed to include the costs for water/waste water, which are billed according to consumption, in the corresponding operating cost statements. This resulted in a credit balance of €134.09 for 2006 and €222.83 for 2007, taking into account the advance payments made. The defendants claim that the water meter functioned properly; in this respect, the plaintiffs would still have to pay €496.53 in arrears for 2006 and €154.79 for 2007.
With the action, the plaintiffs demanded from the defendants not only the repayment of the deposit but also the payment of what they considered to be the credit balance from the statements of operating costs for the years 2006 and 2007 (a total of € 1,117.77). The defendants filed a set-off with the alleged claims for back payment of operating costs. The district court allowed the action. On the appeal of the defendants, the Regional Court amended the judgement and dismissed the action in the amount of € 377.62. The defendants appealed against the judgement.
The plaintiffs' appeal against this decision was unsuccessful. The VIII. Civil Senate of the Federal Court of Justice (BGH), which is also responsible for residential tenancy law, ruled that the only thing that matters in the context of the operating costs statement is that the actual consumption is accurately reflected. If the consumption values entered in the operating costs statement are based on the reading of a calibrated meter, there is a factual presumption that these values reflect the actual consumption. Values read by an uncalibrated meter are not presumed to be correct. In this case, the landlord must demonstrate and prove that the readings are correct. If the landlord succeeds in proving this, § 25 para. 1 no. 1a EichG does not prevent the use of the readings. According to the findings of the Court of Appeal, the landlord was able to prove that the readings were correct by submitting an inspection certificate from a state-recognised inspection authority, which showed that the measurement tolerance limits had been complied with.
§ 25 EichG (continuation of calibration obligations) reads (as of 03.12.2010):
(1) It is prohibited to,
1. measuring instruments for the determination
(a) the length, area, volume, mass, thermal or electrical energy, thermal or electrical power, flow rate of liquids or gases or density or content of liquids,
(b) (...) to be used in the course of trade without having been calibrated or to be held in readiness for use without special preparation,
Judgment of the Federal Supreme Court of 17 November 2010 - VIII ZR 112/10
Lower courts:
AG Bautzen - Judgment of 30 June 2009 - 21 C 1010/08
LG Bautzen - Judgment of 30 April 2010 - 1 S 87/09
Source: Press release of the BGH
Goldberg Attorneys at Law 2010
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
