Federal Court of Justice, 26/09/2012, Ref.: XII ZR 112/10
In many cases, a tenancy agreement is structured using a pre-formulated tenancy agreement, a so-called form tenancy agreement.
If such a form rental agreement exists, the provisions of Sections 305 et seq. BGB apply, which are intended to protect the contractual partner of the form user against unfair, unclear and surprising clauses.
A central provision of these regulations is the transparency requirement set out in Section 307 BGB.
Accordingly, provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith.
According to Section 307 (1) sentence 2 BGB, an unreasonable disadvantage may arise from the fact that the provision used in the contract is not clear and comprehensible.
This transparency requirement is particularly important for agreements on the transfer of ancillary rental costs. Incidental rental costs are part of the rent.
The tenant can only reliably assess the appropriateness and market conformity of the rent to be paid by him if he can at least get a rough idea of what additional costs he may incur in addition to the basic rent on the basis of an explicit and sufficiently specific apportionment agreement.
This is based on the knowledge of an average tenant at the time the contract is concluded
In the above-mentioned case, the Federal Court of Justice had to deal with the validity of the transfer of various types of ancillary costs within the framework of a standard tenancy agreement.
Facts of the Case The defendant was the tenant of a shop in a local shopping centre. The parties had a so-called form rental agreement. Section 8 (II) of the rental agreement regulated the ancillary costs:
1. all ancillary costs of the local shopping centre, in particular all costs of operation and maintenance of the technical facilities, shall be borne by all tenants on a pro rata basis. Ancillary costs shall be allocated to the tenants in their actual proven amount without limitation to the costs listed in Annex 3 to Section 27 (1) of the Second Calculation Ordinance. In particular, these are the costs for
- Heating, including the costs of operation, maintenance, servicing and maintenance and energy consumption of all equipment relating to the heating and ventilation system ...
- Caretakers, operating staff, centre managers and administration ...
- the maintenance and servicing of all technical equipment, including the costs of operation ...
- Insurance ..."
On the basis of these regulations, the plaintiff as landlord demanded back payments on its operating cost statements for 2004, 2005 and 2006 as well as calculated interest on arrears due to the incomplete or late payment of the monthly advance payments of operating costs by the defendant in 2004 and 2005.
With regard to the operating cost statements prepared by the plaintiff, the parties disputed in particular whether and to what extent individual ancillary costs relating to the communal facilities of the local shopping centre had been effectively (proportionately) allocated to the tenants.
The Regional Court partially upheld the claim and ordered the defendant to pay the plaintiff € 61,388.90 plus interest.
The Higher Regional Court appealed to changed the decision of the Regional Court and only ordered the defendant to pay the plaintiff € 17,924.76 plus interest.
In the opinion of the OLG, the transfer of the ancillary costs for "insurance", the transfer of the ancillary costs for the "centre manager" and the transfer of the costs for the "caretaker" in particular were invalid due to a breach of the transparency requirement. The plaintiff was also not entitled to demand interest on arrears.
Federal Court of Justice: The BGH did not follow the opinion of the OLG in all points, but in particular also considered the transfer of ancillary costs for "insurance" and "centre manager" to be invalid due to a breach of the transparency requirement.
According to the BGH, the transfer of the costs for insurance was unclear in terms of content because it would not provide the tenant with any indication of being able to estimate the type and amount of the insurance costs he might incur as part of his economic calculation.
For this reason, the Federal Court of Justice had already deemed comparable clauses which, in the case of commercial leases, dealt with the transfer of costs for "customary insurance" to be invalid with regard to a breach of the transparency requirement.
The clause regarding the transfer of costs for centre management also does not indicate which costs are included or which services should be covered by centre management in terms of content.
Precisely because the plaintiff also demanded an allocation of administrative costs, costs for the caretaker and costs for office, administrative and technical rooms, it was not clear which other costs would still be incurred under the term centre management.
Neither DIN standards nor generally recognised guidelines from a professional organisation are available to describe the area of activity of a "centre manager".
The plaintiff had not demonstrated a practice recognised by all market circles involved in the real estate industry, according to which the term "centre management" was always to be understood in a certain sense, and the Court of Appeal had not established this.
The term "centre management" also does not in itself permit a limitation of the individual items associated with it, because it could also include expenses for market analyses, determining customer wishes, advertising and PR measures, decoration, events and other profiling measures.
Because the scope of the measures to be taken by the centre manager had not been described in detail and limited in the present rental agreement, the costs incurred by the tenant could not even be roughly estimated, so that the clause was non-transparent and therefore invalid.
Source: Federal Court of Justice
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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