Reimbursement from the operating costs statement is not an acknowledgement of debt

The Federal Court of Justice (BGH) has ruled that the unconditional reimbursement of a tenant's credit balance resulting from an operating costs statement does not in itself constitute a declaratory acknowledgement of debt by the landlord.

The plaintiffs are tenants of a flat owned by the defendant in Gütersloh. The tenancy agreement provides for the apportionment of operating costs, including heating and hot water costs, as well as monthly advance payments. In July 2007, the defendant provided the plaintiffs with a statement of operating costs for the year 2006. The statement showed a credit balance for the plaintiffs in the amount of € 185.96, which the defendant credited to the plaintiffs' rent account held with it in August 2007. After the statement of operating costs had been issued, the defendant noticed that 8,200 litres of heating oil to the value of € 4,613.32 had inadvertently been left out of the statement of heating costs. The defendant informed the plaintiffs of this fact by letter of 11 December 2007 and sent a corrected statement, which resulted in a credit balance of € 138.08 less. The defendant debited this difference from the plaintiffs' current account in January 2008 on the basis of the direct debit authorisation given to it. The plaintiffs demanded repayment of the debited amount. The Local Court dismissed the action and allowed the appeal. The district court dismissed the plaintiffs' appeal.

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 landlord of residential premises can correct an operating cost statement subsequently - within the settlement period pursuant to Section 556 (3) sentence 2 and sentence 3 of the German Civil Code (BGB) - to the detriment of the tenants, even if he has unconditionally credited the credit balance resulting from the original, incorrect statement to the tenant's account. The settlement and objection periods of Section 556 (3) of the German Civil Code (BGB) for operating costs introduced by the Tenancy Law Reform Act (Mietrechtsreformgesetz) ensure that the parties to a tenancy agreement of a residential tenancy obtain clarity about their obligations from a concluded settlement period after a manageable period of time. In view of this, the mere payment of the credit balance resulting from the statement does not yet justify the assumption of an acknowledgement of debt that makes the final amount stated in the statement binding.


Judgment of the Federal Supreme Court of 12 January 2011 - VIII ZR 296/09

Lower courts:

Gütersloh Local Court - Judgment of 5 December 2008 - 10 C 869/08

Bielefeld Regional Court - Judgment of 23 September 2009 - 22 S 46/09


Source: Press release of the BGH


Goldberg Attorneys at Law 2011

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