The Federal Court of Justice (BGH) has ruled that the unconditional reimbursement of a credit balance resulting from an operating cost statement, in itself, does not constitute a declaratory acknowledgment of debt by the landlord.
The plaintiffs are tenants of an apartment owned by the defendant in Gütersloh. The rental 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 issued the operating cost statement for 2006 to the plaintiffs. The statement showed a credit balance of €185.96 for the plaintiffs, which the defendant credited to their rental account in august 2007. After issuing the operating cost statement, the defendant realized that 8,200 liters of heating oil, valued at €4,613.32, had been inadvertently omitted from the heating cost calculation. The defendant informed the plaintiffs of this circumstance by letter dated December 11, 2007, and sent a corrected statement, which resulted in a credit balance reduced by €138.08. The defendant debited this difference amount from the plaintiffs' current account in January 2008, based on the direct debit authorization granted to her. The plaintiffs seek repayment of the debited amount. The Local Court dismissed the claim and allowed the appeal. The Regional Court rejected the plaintiffs' appeal.
The plaintiffs' appeal on points of law was unsuccessful. The VIII Civil Senate of the Federal Court of Justice, responsible, among other things, for residential tenancy law, ruled that a landlord can subsequently correct an operating cost statement – within the accounting period according to § 556 para. 3 sentence 2 and sentence 3 of the German Civil Code (BGB) – to the detriment of the tenants, even if they had unconditionally credited the credit balance resulting from the original, erroneous statement to the rental account. The accounting and objection periods for operating costs introduced by the Tenancy Law Reform Act, as per § 556 para. 3 BGB, ensure that parties to a residential tenancy agreement gain clarity about their obligations from a completed accounting period within a foreseeable timeframe. Given this, the mere payment of the credit balance resulting from the statement does not yet justify the assumption of an acknowledgment of debt that would render the final amount stated in the statement binding.
Judgment of the Federal Court of Justice of January 12, 2011 – VIII ZR 296/09
Lower Courts:
Local Court Gütersloh – Judgment of December 5, 2008 – 10 C 869/08
Regional Court Bielefeld – Judgment of September 23, 2009 – 22 S 46/09
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2011
Attorney Michael Ullrich, LL.M. (Information Law)
Email: info@goldberg.de
