Potsdam Regional Court, 17.07.2015, Ref.: 13 S 72/14
§ Section 2 of the Heating Costs Ordinance stipulates that, with the exception of buildings with no more than two flats, one of which is occupied by the landlord, the provisions of this ordinance take precedence over contractual provisions. However, contractual agreements to the contrary are not invalid, only that neither party can invoke them.
Priority also applies if the parties have agreed a flat-rate settlement of heating costs. It is irrelevant whether conflicting provisions have been made in a form or in an individual agreement.
A bill issued on the basis of contractual agreements that conflict with the Heating Costs Ordinance is valid and can give rise to claims that are due. However, it has the legal consequence of the right of reduction under § 12 para. 1:
Insofar as the costs of the supply of heat or hot water are not billed on the basis of consumption, contrary to the provisions of this Ordinance, the user shall be entitled to reduce the share of the costs attributable to him by 15 per cent in the case of non-consumption-based billing of the costs
If the tenant has not exercised the right to reduce heating costs, he may not claim back heating costs paid retroactively by invoking Section 12 (1) of the Heating Costs Ordinance (HeizkostenV).
In the decision below, the Potsdam Regional Court first had to deal with whether such a contractual agreement existed. It assumed the most tenant-friendly interpretation and consequently assumed an agreement on inclusive rent. However, such an agreement is contrary to the Heating Costs Ordinance. However, the court ruled that the landlord could not assert any additional claims against the tenant for heating costs incurred in the past, even if an agreed inclusive rent for heating costs was not permitted, because the provisions of the Ordinance on the Consumption-based Billing of Heating and Hot Water Costs (HeizkostenV) preclude this and the requirements of Section 2 of the Heating Costs Ordinance were not met. The tenant is only authorised with effect for the future to adapt the structure of the tenancy agreement to the binding statutory regulation of the Heating Costs Ordinance.
Facts of the Case:
The parties' rental agreement contained the provision that the operating costs are included in the rent
The parties have a tenancy agreement for the flat occupied by the defendant. In § 3 of the tenancy agreement dated 1 April 1995, it was agreed that the rent would be DM 700.00 and the ancillary costs DM 150.00. The word "advance on heating costs" next to the word "ancillary costs" was crossed out. In addition, the contract contains the following wording: "The operating costs within the meaning of § 27 of the Second Calculation Ordinance are included in the rent." and "The ancillary costs are charged in the form of monthly instalments and are to be settled with the tenant annually after the reference date of ... of each year. ... The provisions of § 5 apply to heating costs".
It was agreed elsewhere that heating and hot water costs are not included in the rent
Section 5 (4) of the rental agreement states: "The operating costs for heating and hot water supply are not included in the agreed rent and will be allocated by the landlord to the flats connected to it."
The plaintiff calculated the heating and hot water costs of the defendant without deducting advance payments.
The plaintiff calculated a payment amount of € 1,572.01 from the defendant for 2012 and issued a statement of account on 23 December 2011. It requested the defendant to pay the amount by 20 January 2012. However, the defendant did not pay.
Landlord sued tenant for back payment of operating costs
In its action before the local court, the plaintiff requested that the defendant be ordered to pay the plaintiff € 1,572.01 plus interest at a rate of 5 percentage points above the base rate since 21 January 2012. The defendant requested that the action be dismissed.
She argued that a flat-rate rent had been agreed, so that the heating costs were also covered with the payment of the rent and therefore there was no room for a bill. As the house only had two flats and one of the flats was occupied by the landlord, this was not applicable in accordance with Section 2 of the Heating Costs Ordinance (HeizKostV).
The local court upheld the claim and ordered the defendant to pay the plaintiff € 1,572.01 plus interest of 5 percentage points above the base rate since 21 January 2012.
The defendant appealed against this judgement.
Judgement of the Potsdam Regional Court:
Potsdam Regional Court saw no claim for payment by the landlord
The Postdam Regional Court ruled that the admissible appeal was justified, as the plaintiff had no claim against the defendant for payment of the additional claim amount of € 1,572.01, as stated in the heating cost statement it had drawn up for the year 2010.
The written rental agreement dated 1 April 1995 stated that an inclusive rent had been agreed. The agreement stated that the heating costs were covered by payment of the agreed rent in the amount of DM 700.00/€ 357.90.
According to the regional court, all operating costs are included in the rent
Even if the clauses of the contract are not unambiguous, the wording in Section 3 (3) of the tenancy agreement, according to which the operating costs within the meaning of Section 27 of the Second Calculation Ordinance are included in the rent, speaks in favour of this interpretation. The consequence of this is that heating costs are also covered by this in accordance with Annex 3 No. 4 of the Second Calculation Ordinance.
It is true that Section 5 of the standard rental agreement states that the operating costs for heating and hot water supply are not included in the agreed rent and will be allocated by the landlord to the flats connected to it. However, no agreement on an advance payment for the heating costs could be inferred from the contract.
An addition in brackets with the term "advance on heating costs" added under Section 3 (2) of the ancillary costs section had been deleted with an X sign.
Thus, according to Section 305 c BGB, there were doubts in the interpretation of general terms and conditions, which were to the detriment of the user. Therefore, the agreement of an inclusive rent in relation to the heating costs was to be assumed to the detriment of the plaintiff as the legal successor of the original landlord.
Although the inclusive rent violates the Heating Costs Ordinance, no additional payment can be demanded
Although the agreement of an inclusive rent for heating costs was not permissible, as the provisions of the Ordinance on the Consumption-based Billing of Heating and Hot Water Costs (HeizkV) conflict with this, the plaintiff could not bill the heating costs incurred in the past to the defendant.
The plaintiff was only entitled to adjust the rental agreement to the binding statutory regulation of the Heating Ordinance with effect for the future, insofar as the agreement of the inclusive rent for the operating cost type heating costs was generally inadmissible and the exemption regulation of Section 2 of the Heating Ordinance did not apply. Such an adjustment had not yet been made.
There were two barriers to the unilateral reorganisation of the usage agreement. Firstly, they must remain within the limits that the HeizkV allows for cost allocation. Secondly, the principles to be derived from Section 315 of the German Civil Code (BGB) must be observed, according to which an adjustment must be made that is as congruent with the contract as possible.
When converting an inclusive rent to a (partially) inclusive rent plus a separate heating cost component, the benefit structure must therefore not be changed to the detriment of the tenant.
Consequently, the time of the conclusion of the contract for the use of the property must be taken into account when calculating the compensation. At this time, the parties would have been in agreement as to which service on the part of the user provider was to be compensated by the consideration of the user. In addition, the landlord must be assumed to have acted reasonably from a business point of view in that it included the operating costs in full in its calculation of the fee in addition to the pure usage fee.
Heating costs for the entire building are to be calculated in accordance with the provisions of the HeizkV. The costs are to be allocated to the individual tenants in accordance with Section 315 BGB. The individual calculation steps in the separation between the (old) flat-rate rent and the (new) partial inclusive rent must be clearly explained by the landlord.
If, as in this case, it is not possible to make this calculation on the basis of the landlord's documents due to the change of landlord, the share of heating costs for the specified dates must be determined by experts.
Source: Potsdam Regional Court
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