As a commercial tenant, you have received a service charge statement and are wondering whether the additional payment demanded is justified, whether it has arrived on time, and which costs the landlord is actually permitted to pass on. Unlike residential tenancy law, the law regulates only a few framework points for commercial spaces. Your lease agreement and the relevant case law are decisive. This guide shows which deadlines apply, which costs may be included in a statement, and when you have the right to inspect the original receipts.
Scope of this post: The text deals with commercial tenancies with service chargesPayments in advance, which are billed annually. In the case of a genuine operating costFlat rate In the commercial lease, the obligation to account does not apply; this guideline does not apply there.
At a glance
- Duty to account Even without a statutory deadline, the commercial landlord must issue a statement within a reasonable period – according to the Federal Court of Justice (BGH) ruling XII ZR 22/07 of 27 January 2010, generally twelve months after the end of the accounting period.
- No automatic exclusion of subsequent claims: Unlike residential space (§ 556 section 3 sentence 3 of the German Civil Code (BGB)), exceeding the deadline does not automatically preclude subsequent claims in commercial leasing. Limits arise from forfeiture (§ 242 BGB) and from the lease agreement.
- Objection period not regulated by law: In commercial property law, neither the twelve-month objection period applicable to residential tenancy law nor a general „three-year period“ applies. Contractual provisions are decisive; a claim for repayment becomes time-barred in three years pursuant to Sections 195 and 199 of the German Civil Code (BGB).
- Recoverability depends on the contract: A general service charge agreement broadly covers the list of items in section 2 of the Operating Costs Ordinance (BetrKV) (Federal Court of Justice (BGH) XII ZR 120/18). Administrative costs and other items going beyond this require effective, specific clauses.
- Inspection of vouchers pursuant to Section 259 of the German Civil Code (BGB): Electronic Original (such as e-invoices) may also be provided electronically in a commercial context. What the landlord is not permitted to do according to OLG Schleswig jurisprudence: unilaterally replace existing paper originals with scans.
- The BEG-IV housing rule does not apply: Section 556(4) sentence 2 of the German Civil Code (BGB) (electronic provision of vouchers since 01/01/2025) only applies to residential property. In a judgment dated 18/07/2025 (12 U 73/24), the Schleswig Higher Regional Court rejected an analogous application to commercial property.
Basics: Payments on account, contract and the role of the law
If you, as a commercial tenant, make monthly service charge advance payments, the landlord is obliged to account for these annually. The specific modalities – which costs are passed on, how they are distributed, which deadlines apply – are determined by your lease agreement. The law does not contain a parallel provision for commercial properties to Section 556 of the Civil Code (BGB): Section 578 of the German Civil Code (BGB) Whilst it does refer to residential tenancy law for certain provisions, it does not do so for the settlement of service charges. Consequently, the commercial tenancy agreement is, from a legal perspective, the starting point for any assessment.
Contractual freedom nonetheless does not mean unrestricted regulation to the detriment of the tenant. Standard-form clauses in commercial tenancy agreements are subject to general terms and conditions control pursuant to Sections 305 et seq. of the German Civil Code (BGB) – with the consequences set out in Section 310(1) of the German Civil Code (BGB) regulated relaxations for contracts between businesses. Unclear standard business terms clauses are interpreted to the detriment of the user (§ 305c para. 2 BGB); in practice, this is frequently the landlord. And individual areas of law – such as the Heating Costs Ordinance and the Carbon Dioxide Cost Allocation Act – contain mandatory special rules that must also be observed for commercial spaces (more on that below).
Deadlines: billing period, additional payment demand and limitation period
For commercial lease agreements without their own contractual provision, there is no rigid twelve-month framework as there is for residential space. However, the Federal Court of Justice (BGH) made it clear as early as 2010 that commercial landlords must also issue the statement within a reasonable period – as a rule, within twelve months after the end of the billing period (BGH, judgment of 27.01.2010, XII ZR 22/07). This jurisprudence continues to apply.
The separation of several legal consequences is important, which must also be examined separately in residential tenancy law - but in commercial tenancy law are also largely left to contractual freedom:
| Aspect | Residential rent | Commercial rent |
|---|---|---|
| Landlord's obligation to account | 12 months after the end of the billing period (§ 556 section 3 sentence 2 BGB) | Reasonable period, as a rule 12 months (Federal Court of Justice XII ZR 22/07) |
| exclusion of subsequent claims in the event of delay | Yes – no right to claim additional payment (Section 556(3), third sentence, of the German Civil Code (BGB)); exception where there is no obligation to bear the risk | No – no statutory exclusion. Limits arise from forfeiture (Section 242 of the German Civil Code (BGB)) and from the tenancy agreement |
| tenants objection period | 12 months after receipt of the utility bill (section 556(3) sentence 5 of the German Civil Code (BGB)) | No statutory time limit. Contractual arrangements are decisive, provided they are valid |
| Limitation of claims | Generally three years from the end of the year in which the claim arose and the creditor obtained knowledge or ought to have obtained knowledge through gross negligence (sections 195, 199(1) of the German Civil Code (BGB)). The limitation period may be suspended or start anew. | Generally three years from the end of the year in which the claim arose and the creditor obtained knowledge or ought to have obtained knowledge through gross negligence (sections 195, 199(1) of the German Civil Code (BGB)). The limitation period may be suspended or start anew. |
Limitation is not a period for raising objections. The three-year time limit set out in Sections 195 and 199 of the German Civil Code (BGB) applies to claims – such as the tenant’s claim for a refund of overpaid advance rent or the landlord’s claim for additional payment. It is not a period within which the tenant must or may raise objections to an existing statement of account. Whether objections are subject to a time limit depends on the terms of the contract. In the absence of a valid clause, objections generally remain possible for as long as the claim for additional payment itself is being asserted; an acknowledgement, a settlement or, in exceptional cases, forfeiture may limit this timeframe.
Forfeiture as a practical limit. Even in the absence of a fixed deadline, the landlord is obliged, in accordance with the principle of good faith (Section 242 of the German Civil Code (BGB)), to issue the statement of account within a reasonable period of time. If an additional claim is only raised years later, the tenant may raise the defence of forfeiture. The prerequisites are the element of time and the element of circumstances; the assessment depends on the individual case.
Example: For the billing period 01/01 to 31/12/2024, the statement should typically be provided by the end of 2025 in accordance with Federal Court of Justice case law. If it only arrives in spring 2026, the additional payment is not precluded on that basis alone. Whether forfeiture applies depends on the landlord's conduct and the tenant's reliance. – This example serves for illustration purposes and does not replace an examination of the specific case.
What costs may the landlord pass on?
The starting point is once again the tenancy agreement: only those costs that have been validly transferred to the tenant by contract can be passed on. However, the Federal Court of Justice (BGH) has clarified the practically important question of how far a general „operating costs“ agreement extends in commercial tenancies: the blanket formulation „operating costs“ fundamentally incorporates the catalogue of the Operating Costs Ordinance (Betriebskostenverordnung), provided no differing understanding between the parties can be proven (BGH, judgment of 08.04.2020, XII ZR 120/18). By contrast, stricter requirements apply to special costs that go beyond this catalogue.
| Cost type | Fundamental valuation in commerce |
|---|---|
| Catalogue costs pursuant to Section 2 of the German Ordinance on Operating Costs (BetrKV) | In the case of a general agreement, service charges are fundamentally rechargeable (BGH XII ZR 120/18). |
| Administrative costs | In commercial leases, transferable under an effective contractual agreement (BGH XII ZR 56/11). In residential leases, not operating costs within the meaning of the Operating Costs Ordinance (§ 1 para. 2 no. 1 BetrKV). |
| Maintenance and repair | Fundamentally the landlord's responsibility (§ 535 section 1 sentence 2 of the German Civil Code [BGB]). The standard contractual transfer of maintenance and repair costs for communally used areas and facilities without any upper limit is invalid; even with a limit, the scope and design of the clause must be examined. Different standards of review apply to individually negotiated agreements. |
| centre management, advertising cost contribution | Typical for shopping centres. Transferable only in the case of a specific, transparent clause that clearly shows the scope of services and cost framework. |
| „Other operating expenses“ | Only if explicitly designated in the contract or in an appendix. A mere catch-all phrasing frequently does not satisfy case law. |
For the review of your specific billing, this means: every item must be checked against the contract text. If the type of cost is missing from the contract's apportionment catalogue, it is not eligible for apportionment – subject to any still permissible interpretation. If it is mentioned, it must additionally be checked whether the clause complies with the transparency requirement and whether case law recognises limits for the specific item.
Principle of economic efficiency – also applies in the commercial sector
In commercial property too, the landlord is not free to set the amount of service charges at will: the Federal Court of Justice (BGH) also recognises an ancillary duty of economic efficiency for commercial lease agreements. When taking measures and awarding contracts that influence the apportionable costs, the landlord must maintain a reasonable cost-benefit ratio. Freedom of contract does not exempt them from this; it merely governs the framework of the apportionment, not its unlimited amount.
In practice, this means: anyone who considers a position to be unreasonably high can present substantiated arguments that equivalent services could have been obtained at significantly lower prices. The burden of presentation and proof lies with the tenant; a comparison with locally prevailing market offers is helpful. Regarding the burden of proof in cases of breaches of the principle of economic efficiency – developed in residential tenancy law there, but applicable in principle – see our article Burden of proof in the event of a breach of the principle of economic efficiency.
Inspection of vouchers: original vouchers and electronic documents
Because the new housing regulation of Section 556(4) of the German Civil Code (BGB) does not apply to commercial property, remains Section 259, paragraph 1 of the German Civil Code the central legal basis: anyone who manages an administration associated with expenses and passes on these costs must render an account of the expenses and provide receipts. The scope covers incoming invoices, payment receipts, contracts with service providers and – in the case of consumption-based apportionment – the underlying consumption data.
Electronic originals are permitted
A common misconception: „original receipts“ does not automatically mean „paper“. Documents that were originally created electronically and sent electronically to the landlord – such as e-invoices – are electronic originals and can also be submitted electronically. What the Schleswig Higher Regional Court rejected in its judgment of 18.07.2025 (12 U 73/24) is something else: the unilateral replacement of existing paper originals with mere scans or PDFs without the tenant's consent.
Practical example: A tradesperson's invoice that has been received by the landlord on paper must be submitted in the original – on paper. An e-invoice (XRechnung) that was created as a structured file and transmitted electronically is an electronic original; it can be viewed as such.
OLG Schleswig 12 U 73/24 – the core findings
The court dismissed the appeal of a landlord who had referred to Section 556(4) of the German Civil Code (BGB) in the version of the Fourth Bureaucracy Reduction Act. The decision is based on two arguments:
- According to the Higher Regional Court, Section 578 of the Civil Code (BGB) does not cross-reference Section 556 of the Civil Code (BGB) and there is no unintended statutory loophole that could justify an analogy.
- As a supplementary argument: Even if an analogous application were considered, it would only come into question for the period after 1 January 2025 granted Taking bills into account – a billing period of 2024 can well lead to a bill not being issued until 2025.
The decision originates from a Higher Regional Court, so it is not binding on other Higher Regional Courts or the Federal Court of Justice.
Further to the decision: Commercial tenancy law: Digital receipts are not sufficient – Schleswig Higher Regional Court on inspection of receipts. A guide to the inspection of receipts for residential tenancies can be found at Disputing service charge statements: deadlines, receipts, errors.
Heating costs and CO₂ costs: legal limits to freedom of contract
Freedom of contract ends where mandatory statutory law applies. For commercial premises, two sets of rules are particularly relevant in practice:
- Heating Costs Ordinance (HeizkostenV) For the allocation of heating and hot water costs, the Heating Costs Ordinance (HeizkostenV) also applies to commercial premises, to the extent that its scope extends. It requires consumption-dependent billing at a specific proportion and regulates meter reading and cost allocation on a mandatory basis. Exceptions to its applicability are governed by Section 11 of the Heating Costs Ordinance and must be assessed on a case-by-case basis. Contractual deviations are only permissible within the framework opened up by the Ordinance.
- Carbon Dioxide Cost Division Act (CO2KostAufG) Since 01.01.2023, it regulates the distribution of CO2-prices between landlord and tenant. In non-residential buildings, the CO2-Costs are generally split equally between landlord and tenant (§ 8 CO2KostAufG). Any agreement that imposes more than 50 per cent on the tenant is generally void. Statutory exceptions, in particular pursuant to § 9 CO2KostAufG, must be examined separately.
Do charges for heating, hot water or CO2 apply2-costs in your billing, the relevant regulations must always be checked alongside the contract. A contractual distribution key that violates the Heating Costs Ordinance is invalid to that extent.
To distinguish between formal and substantive errors
Whether you are challenging a statement of account also depends on the type of error present. Case law distinguishes between two categories:
- Formal errors concern the intellectual and computational comprehensibility of the billing statement. Such an error can affect the entire billing statement or just individual cost items: if erroneous items can be easily calculated out, the billing statement remains valid in all other respects (BGH, judgment of 20.01.2021, XII ZR 40/20). If, on the other hand, the basic information – total costs per cost category, distribution key, tenant's share, advance payments – is missing for the billing statement as a whole, it does not trigger a due claim for payment.
- Material errors regarding the content of individual items: a non-recoverable type of cost, an incorrect distribution key, an excessive item or a calculation error. They do not render the statement invalid as a whole, but lead to the correction of the individual item.
Advance payments that are not taken into account or are taken into account incorrectly do not automatically constitute a formal error. If the method of calculation remains comprehensible, the error regularly pertains to substantive accuracy (Federal Court of Justice, judgment of 15 February 2012, VIII ZR 197/11, concerning residential tenancy there; the principles regarding comprehensibility are applicable).
In practice, this means: for formal errors, pointing out the omission is sufficient; for substantive errors, the tenant must specify the exact item and the reason for the objection. A blanket contestation is generally not sufficient to demonstrate specific billing errors.
How to check your service charge statement
You have received a statement
- Find the contract. Which types of costs are agreed as „operating costs“ or beyond? Which allocation key applies? Is there a contractual settlement or objection period?
- Check formal traceability. Are the total costs per item, the distribution key, the share, and the advance payments shown? Is the billing period correct?
- Reconcile line items with contract and catalogue. Is every item listed in the contract's apportionment schedule, or is it covered by a general „service charge“ clause (the schedule of Section 2 of the German Operating Costs Ordinance)? Special items require a specific clause.
- Request to inspect vouchers in writing. Specify precisely which records are to be inspected, what location and time you propose, and whether electronic provision is acceptable. For paper originals: schedule an on-site appointment.
- Raise substantiated objections. Following inspection, state the specific positions and provide justifications. Include your own calculation, where deductible.
- Treat payment differentially. If the landlord refuses the legitimately requested inspection, the additional payment can be temporarily withheld pursuant to Section 242 of the German Civil Code (BGB). Once inspection has been granted, it must be examined whether and to what amount the additional claim is substantively justified. Objections alone do not postpone the due date; amounts withheld without justification can lead to default under Section 286 of the German Civil Code (BGB).
- Observe deadlines. Comply with contractual time limits for objections, where effective. Pay attention to the limitation period for clawback claims under §§ 195, 199 BGB.
You have not received a statement
If no statement of utility costs is provided after the expiry of the relevant billing period, you should request one from the landlord in writing. The right to a billing statement can be enforced through the courts. During an ongoing tenancy, withholding further utility advance payments in accordance with Section 273 of the German Civil Code (BGB) is also an option. Advance payments already made cannot be reclaimed solely on the grounds of the delayed billing statement. After termination of the tenancy, a right to repayment may exist under additional conditions; in this regard, it must be examined in particular whether a right of retention could already be exercised during the ongoing tenancy (Federal Court of Justice, judgment of 05.12.2012, XII ZR 44/11). Legal advice is recommended to avoid unfavourable scenarios.
For commercial landlords: What belongs in the lease agreement
When drafting new agreements or having existing clauses reviewed as a landlord, the following points for regulation are recommended:
- Precisely specify the service charge catalogue – not just „operating costs“ where special costs outside of Section 2 of the Ordinance on Operating Costs (BetrKV) are to be passed on (such as centre management, advertising cost contributions, security services in shopping centres).
- Regulate the distribution key concretely; unilateral determination reservations (§ 315 BGB) invite disputes.
- Expressly agree on the billing period, settlement deadline and objection period. Whether such a deadline acts as a cut-off period depends on the specific wording; the clause must withstand standard terms and conditions review.
- Regulating the inspection of vouchers: scope, location, electronic provision, copies and allocation of costs. According to the Schleswig Higher Regional Court (OLG Schleswig), electronic provision in commercial transactions can be validly agreed.
- Respect mandatory special rules: Heating Costs Ordinance (Heizkostenverordnung), CO2 Cost Allocation Act (CO2KostAufG). A clause that violates this is void to that extent.
Frequently asked questions
Within what timeframe must the service charge statement be issued for commercial property?
In the absence of a contractual agreement, a reasonable period applies – according to the case law of the Federal Court of Justice (BGH), this is generally twelve months after the end of the billing period (BGH, judgment of 27.01.2010, XII ZR 22/07). Contractual deviations are possible, provided they are effective.
Is a subsequent claim after the expiry of the deadline excluded in commercial trade?
Not automatically. Unlike in residential tenancy law (§ 556 section 3 sentence 3 BGB), there is no statutory exclusion of subsequent claims in the event of a delay in commercial leasing. Limits arise from the principle of good faith (forfeiture, § 242 BGB) and from effective contractual exclusion clauses.
How long do I have to raise objections?
In commercial leases, neither the twelve-month objection period of residential tenancy law nor a general three-year period applies. Contractual periods are decisive, provided they were effectively agreed. The three-year period under Sections 195 and 199 of the German Civil Code (BGB) relates to the limitation period for claims (subsequent demands, reclamation), not the right to raise objections as such.
Is the landlord allowed to provide me with digital receipts instead of paper originals?
Section 556(4) sentence 2 of the Civil Code (BGB) does not apply to commercial leases. According to the Schleswig Higher Regional Court (judgment of 18.07.2025, 12 U 73/24), the landlord cannot unilaterally replace existing paper originals with scans. However, documents that were created electronically in the first place and sent to the landlord electronically (such as electronic invoices) are electronic originals and can be viewed as such. A contractual agreement on electronic provision is possible.
Is the wording „The tenant shall bear the operating costs“ sufficient in a commercial lease?
For catalogue items under Section 2 of the Operating Costs Ordinance (BetrKV) generally yes. The Federal Court of Justice (BGH) considers a general „operating costs“ agreement in commercial leases to be sufficient to incorporate the catalogue if no differing understanding of the parties can be proven (BGH, judgment of 08.04.2020, XII ZR 120/18). For special costs outside the catalogue – such as centre management, advertising cost allocations or security services in shopping centres – the blanket phrasing is not sufficient; they must be specifically designated.
Are management costs and repair costs transferable in commercial real estate?
Administrative costs can be passed on to the tenant by means of an effective commercial lease clause (Federal Court of Justice [BGH], judgment of 10.09.2014, XII ZR 56/11). The following applies to maintenance and repair: The standard-form transfer of costs for shared areas and facilities without a limit on the amount is invalid. Even with a limit, the scope and design of the clause must be reviewed. Individual agreements are subject to different review standards.
Am I allowed to withhold the back payment if access to the receipts is refused?
Provided and for as long as the landlord does not allow the legitimately requested inspection of receipts, the tenant may temporarily withhold the additional payment pursuant to Section 242 of the German Civil Code (BGB). Once the inspection of receipts has been granted, the right of retention based hereon shall cease to apply. Whether the additional payment is to be made in whole or in part depends on its substantive justification and any further pleas. Objections alone do not postpone the due date; unjustifiably withheld amounts may lead to default pursuant to Section 286 of the German Civil Code (BGB).
Do you have any questions about your commercial service charge statement?
We review your commercial lease agreement and the specific statement of account, draft the request for inspection of vouchers, assist with reviewing the vouchers, and support you through objections and disputes up to legal representation. We also advise landlords and tenants on contract drafting, such as the inclusion of up-to-date operating cost and voucher inspection clauses. For an initial, no-obligation contact, you can reach us by telephone, email, or via our Contact form.
Read more
- Commercial tenancy law: Digital receipts are not sufficient – Schleswig Higher Regional Court on inspection of receipts – the full discussion of the decision of 18 July 2025.
- Disputing service charge statements: deadlines, receipts, errors – the living space parallel contribution with section 259 of the German Civil Code (BGB) and current Federal Court of Justice (BGH) case law on the inspection of receipts.
- Burden of proof in the event of a breach of the principle of economic efficiency – Burden of assertion and proof of the tenant in detail.
- Tenancy law in Cologne – Overview of advisory and representation services in residential and commercial tenancy law.
This post gives an overview of service charge statements in commercial tenancy law under German law and does not replace a legal review of the individual case. The legal bases presented correspond to the status at the time of publication; subsequent changes in legislation or case law may alter the assessment.
