Federal Court of Justice, 12 January 2011, Ref.: VIII ZR 296/09
§ Section 556 of the German Civil Code (BGB) regulates the modalities of the operating cost settlement. According to Section 556 (1) sentence 1 BGB, the landlord and tenant can agree that the tenant bears the operating costs. In accordance with Section 556 (3) BGB, the advance payments for operating costs must be settled annually and the principle of economic efficiency must be observed.
In particular, the question of whether the landlord can still correct the statement of operating costs to the detriment of the tenant within the settlement period is repeatedly the subject of legal disputes.
This issue is governed by Section 556 (3) sentences 2, 3 and sentences 5, 6 BGB, which was introduced as part of the Tenancy Law Reform Act of 19 June 2001.
In the above-mentioned decision, the Federal Court of Justice now had to decide once again whether the landlord was allowed to correct the amount of operating costs paid in advance at the tenant's expense after they had already been reimbursed.
FactsThe plaintiffs were tenants of a flat owned by the defendant. As part of the rental agreement, the operating costs were allocated to the plaintiffs.
In July 2007, the defendant issued the plaintiffs with the statement of operating costs for 2006, which showed a credit balance of € 185.96 for the plaintiffs.
The defendant credited this credit to the plaintiffs' rental account held with it.
After the statement of operating costs was issued, the defendant subsequently realised that it had inadvertently omitted 8,200 litres of heating oil worth € 4,613.32 from the statement of heating costs.
The defendant informed the plaintiffs of this fact and corrected the statement, resulting in a credit balance reduced by € 138.08. The defendant debited this difference from the plaintiffs' current account on the basis of the direct debit authorisation granted to it. The defendant debited this difference from the plaintiffs' current account on the basis of the direct debit authorisation granted to it.
The lawsuit was directed against this, which was initially dismissed by the district court and the regional court.
Federal Court of JusticeThe BGH also followed the view of the defendant and ruled that the landlord of residential property can correct a statement of operating costs retrospectively - within the settlement period in accordance with Section 556 (3) sentences 2 and 3 BGB* - to the detriment of the tenants if he has credited the credit balance resulting from the original, incorrect statement to the rental account without reservation.
In the opinion of the BGH, the settlement and objection periods for operating costs introduced by the Tenancy Law Reform Act in Section 556 (3) BGB would ensure that the parties to a tenancy agreement for a residential tenancy would obtain clarity about their obligations from a completed settlement period after a reasonable period of time.
The mere payment of the credit balance resulting from the statement is therefore not an acknowledgement of debt, which makes the final amount stated in the statement binding.
Source: Federal Court of Justice
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