Federal Court of Justice, 06.07.2011, Ref.: VIII ZR 340/10
The modalities for the preparation and content of the statement of operating costs are set out in Section 556 BGB.
In accordance with Section 556 (3) BGB, the principle of economic efficiency must be observed when settling operating costs.
The principle of economic efficiency refers to the landlord's secondary contractual obligation to take into account an appropriate cost-benefit ratio when taking measures and decisions that affect the amount of operating costs to be borne by the tenant.
In order to check the statement of operating costs and compliance with the principle of economic efficiency, the tenant is entitled to inspect the receipts on the landlord's premises.
A breach of the principle of economic efficiency can lead to a claim for damages, which is aimed at exempting the tenant from unnecessary costs.
However, the question of who bears the burden of presentation and proof for the requirements for a possible claim for damages has not yet been clarified by the highest court.
FactsThe defendants were tenants of one of the plaintiff's flats in an apartment block. In November 2008, the plaintiff issued the defendants with the statement of operating costs for the year 2007.
This showed, among other things, a share of EUR 525.71 for refuse collection charges attributable to the defendants.
The tenants objected to the amount of this share in a letter from a lawyer and, using the "Betriebskostenspiegel für Deutschland" published by the Deutscher Mieterbund e.V., calculated a share of 185.76 euros attributable to them.
The defendant tenants retained the difference from the January 2009 rent and the legal fees of EUR 99.60 from the February rent.
In the previous instance, the Heidelberg District Court had upheld the claim, while the Heidelberg Regional Court dismissed the tenants' appeal.
Federal Court of JusticeThe BGH also followed the plaintiff's view. In this context, the BGH ruled that the tenants would bear the burden of presentation and proof for the claim requirements with regard to the allegation of a breach of the principle of economic efficiency.
In this respect, the tenants had not succeeded in providing the necessary evidence of a breach of duty by the landlord.
The tenant's reference to the plaintiff's higher operating costs compared to the "Betriebskostenspiegel für Deutschland" does not meet the procedural requirements for presentation, as the operating cost summaries determined on an empirical basis across regions are not meaningful in individual cases in view of the different cost structures depending on the region and municipality.
Source: Federal Court of Justice
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