The plaintiffs, two condominium owners, are contesting the annual statement of account of the condominium owners' association's administrator. The administrator had not included the actual consumption costs for heating and hot water in the annual statement, but the (instalment) payments made to the energy supplier in the year of the statement and allocated them to the condominium owners. The plaintiffs are of the opinion that the administrator must bill according to consumption. Their action was successful before the Regional Court of Appeal.
The appeal of the other condominium owners against the judgement of the Regional Court, who consider the settlement to be correct, was partially successful. The V. Civil Senate of the Federal Court of Justice ruled that all payments made in the accounting period that are related to the purchase of fuels must be included in the overall accounting. This is because the administrator must present an orderly and clear income and expenditure statement, which must be comprehensible to a condominium owner even without consulting professional assistance. These requirements are only met by the overall statement if it shows the actual income and the actual cash flows.
In contrast, the provisions of the Heating Costs Ordinance, which prescribe a consumption-based distribution of heating and hot water costs, must be observed in the individual settlements. Therefore, the costs of the fuel actually consumed in the settlement period are decisive for the distribution in the individual settlements. For reasons of clarity and comprehensibility, the administrator must explain the inevitable deviation of the individual statements from the total statement in the statement in a comprehensible manner.
In the case in question, therefore, the overall statement was in accordance with proper administration, but not the individual statements, as they were not based on the actual consumption. These must be newly prepared.
Judgment of the BGH of 17 February 2012 - V ZR 251/10
Lower courts:
Ludwigshafen am Rhein Local Court - Judgment of 2 July 2010 - 2p C 49/09
Landau in der Pfalz District Court - Judgment of 30 November 2010 - 1 S 167/10
Source: Press release of the BGH
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M.(Information Law)
E-mail: info@goldberg.de
