The plaintiffs, two apartment owners, are contesting the annual statement of accounts issued by the administrator of the homeowners' association. For heating and hot water costs, the administrator had included not the actual consumption costs incurred, but rather the advance payments made to the energy supplier during the billing year, and passed these on to the apartment owners. The plaintiffs contend that the administrator must bill based on actual consumption. Their lawsuit was successful before the Regional Court, acting as the appellate court.
The appeal filed by the other apartment owners, who deemed the billing correct, against the Regional Court's judgment was partially successful. The Fifth Civil Senate of the Federal Court of Justice ruled that the overall statement of accounts must include all payments made during the billing period related to the acquisition of fuels. This is because the administrator is required to present an organized and transparent income and expenditure statement that must be comprehensible to an apartment owner even without professional assistance. The overall statement of accounts only satisfies these requirements if it accurately reflects actual income and cash flows.
For individual statements of accounts, however, the provisions of the Heating Costs Ordinance must be adhered to, which mandate a consumption-based allocation of heating and hot water costs. Consequently, for the distribution in individual statements, the costs of the fuel actually consumed during the billing period are decisive. The administrator must clearly explain the inevitable discrepancy between the individual statements and the overall statement within the billing, ensuring clarity and traceability.
In this specific case, while the overall statement of accounts complied with proper administrative practices, the individual statements did not, as they were not based on actual consumption. These must therefore be re-issued.
Judgment of the BGH of February 17, 2012 – V ZR 251/10
Lower Courts:
Local Court Ludwigshafen am Rhein – Judgment of July 2, 2010 – 2p C 49/09
Regional Court Landau in der Pfalz – Judgment of november 30, 2010 – 1 S 167/10
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2012
Attorney-at-Law Michael Ullrich, LL.M. (Information Law)
Email: info@goldberg.de
