Higher Regional Court of Schleswig - Judgement of 18/07/2025 - 12 U 73/24
(BGB §§ 556, 578)
Original receipts remain mandatory - no digitisation obligation in commercial tenancy law
The Schleswig Higher Regional Court had to decide on a question that is relevant for many landlords and tenants of commercial premises: Is it sufficient if the landlord only provides operating cost receipts digitally - for example as a PDF - or can the tenant continue to demand to see the original documents?
Since 1 January 2025, Section 556 (4) of the German Civil Code (BGB), introduced by the Fourth Bureaucracy Relief Act, has allowed landlords of residential property to provide receipts electronically. However, the Higher Regional Court of Schleswig ruled that this regulation does not apply to commercial leases. The tenant is still entitled to view the original receipts.
The court rejected the appeal of a landlord who had invoked the new legal situation. She wanted to refuse the inspection of paper copies and instead only provide digital copies. The tenant refused to pay the service charge bill until he was given access to the original receipts - with success.
Legal basis: Section 556 (4) BGB only applies to residential property
The central point of the decision is the distinction between residential and commercial leases. § Section 556 BGB expressly regulates residential tenancy law. According to Section 578 BGB, these provisions only apply to commercial leases if they are expressly mentioned or are transferable by analogy.
The Higher Regional Court of Schleswig stated: "The legislator deliberately did not include a reference to the new paragraph 4 of Section 556 BGB in Section 578 BGB. This clearly speaks against its application to commercial leases.
In addition, the legislator had even made changes to Section 578 of the German Civil Code when passing the law - without referring to electronic receipts. The court considered this to be a deliberate legislative decision that excluded commercial tenancies from the new regulation.
No unintended regulatory gap - freedom of contract remains paramount
The landlord argued that there was an unintended loophole that had to be closed by analogous application. The court took a different view: there was no such loophole.
The legislator made a conscious decision to leave the parties far-reaching contractual freedom in the area of commercial leases. While residential tenancy law provides special protection for the tenant, the commercial tenant is economically stronger and can agree with the landlord on an individual basis how the inspection of receipts is to take place.
This means that the old legal situation remains the same: without an express agreement, the commercial tenant can demand to see the original receipts.
No retroactive application - protection of legal certainty
The court's clarification on the temporal application is interesting. Even if the provision were to be applied by analogy, it would only apply to the future - i.e. for invoices issued after 1 January 2025.
The old law remains applicable for older settlements that were created before the new regulation came into force. The legal concept of Art. 171 EGBGB applies here: In the case of continuing obligations, the provisions existing at the time shall continue to apply to earlier periods.
This means that the landlord could not retroactively invoke the new legal situation. Retroactive application would undermine legal certainty and unreasonably disadvantage the tenant.
Legal classification: Inspection of vouchers is governed by § 259 BGB
Irrespective of Section 556 BGB, the tenant's right of inspection is also based on Section 259 (1) Hs. 2 BGB. According to this, the person who accounts for income and expenditure must „submit the receipts insofar as they are required to be provided“.
The Federal Court of Justice had already ruled on this (BGH, NZM 2022, 172) that the tenant can demand to see the documents in the form in which they are available to the landlord himself. This means that if the documents are available digitally, the landlord may present them digitally. However, if he has originals, he must also make them available for inspection.
The Higher Regional Court of Schleswig confirmed this line and clarified: A landlord may not simply scan and retain the original if he has it himself.
Practical significance: digitalisation only with mutual consent
The ruling has significant practical implications for commercial leases - especially in times of increasing digitalisation.
Landlords cannot unilaterally invoke the new Section 556 (4) BGB in order to completely replace paper documents with digital files. If they only have receipts in paper form, they must also submit these. Only if the landlord himself has received exclusively digital receipts (e.g. from utilities or service providers) can he also pass these on digitally.
The court emphasised that the legislator wanted to promote digitalisation, but not force it. The parties can agree that the receipts are transmitted digitally - but they do not have to.
Practical tip:
It is advisable for landlords to include a clear clause in newly concluded commercial tenancy agreements stating that operating cost receipts may be transmitted electronically. Without such a provision, there is a risk of future disputes such as the one in this case.
No fundamental significance - no appeal authorised
The Higher Regional Court of Schleswig saw no reason to allow an appeal. The question was neither fundamentally in need of clarification nor disputed in case law. Although some voices in the literature (e.g. BeckOK Mietrecht-Pfeifer) discuss an analogous application of Section 556 (4) BGB to commercial leases, this view has not yet prevailed.
The decision therefore remains legally binding: commercial tenants may continue to view original receipts in future - not just digital copies.
Consequence: No digital automatism in commercial tenancy law
The ruling is a signal to practitioners: although digitalisation in tenancy law is progressing, it has its limits where it is not required by law.
While residential tenants have had a digital right of inspection since 2025, commercial tenants must continue to be able to rely on the original. This distinction is logical, as the legislator did not want equality - it relies on the personal responsibility of the economically stronger contracting parties.
The OLG Schleswig thus draws a clear line:
Digital receipts are permitted, but not mandatory.
Original documents remain the standard in commercial tenancy law.
Conclusion:
The ruling of the Higher Regional Court of Schleswig from 18 July 2025 (12 U 73/24) creates legal certainty for commercial tenants. They retain the right to view original receipts for operating costs. The new Section 556 (4) BGB only applies to residential property and cannot be applied analogue or retroactively to commercial tenancies. Digitalisation must not be at the expense of transparency - and in case of doubt, paper still counts.
