Tenancy law: On the question of whether non-payment of operating costs after billing entitles to termination without notice.

Dessau-Roßlau Regional Court, 29/12/2016, 5 S 141/16 

The landlord only has the right to terminate the tenancy agreement without notice if the tenant is in arrears with the payment of the agreed rent on several payment dates. However, this does not include the additional payment for operating costs, as this is not a rent instalment to be paid periodically, but is only determined after the annual statement of account.

The payment of service charges as a recurring payment within the meaning of Section 543 (2) No. 3 BGB is only to be included if it is to be paid as a service charge lump sum or as a service charge advance payment together with the rent on the specified interest dates.

Facts of the Case:

Landlord terminated tenant due to rent arrears and back payments of operating costs

The plaintiff (landlord) in this case requested the defendant (tenant) to vacate and hand over the rented flat on the basis of a notice of termination. The monthly rent for the 31 m² flat most recently amounted to € 254. He also (originally) requested payment of € 1,176.21 - comprising € 667.21 from the heating bill, advance payments for operating costs for nine months totalling € 504 and reminder fees of € 5.

With regard to the payment claim, the parties agreed to settle the legal dispute in the first instance due to two payments by the job centre for the defendant. In addition, in June 2016, the job centre paid the plaintiff a further amount - of € 1,188.24 - for outstanding amounts from unspecified operating cost statements that were the subject of dunning proceedings from 2014.

Local court rejected eviction as the cancellation was also due to outstanding back payments for operating costs

The district court dismissed the action insofar as it had not been declared settled by mutual agreement. The local court was of the opinion that the declaration of termination was invalid. The rent arrears stated in the notice of termination included amounts of € 1,430.22 (content of the enforcement order of the AG regarding operating cost statements from previous periods) and € 667.21 (heating cost statement), which would not fall under the term rent pursuant to Section 543 (2) No. 3 BGB. The plaintiff appealed against this judgement to the Dessau-Roßlau Regional Court.

Judgement of the Dessau-Roßlau Regional Court:

The Court of Appeal also saw no entitlement of the landlord to eviction

The Dessau-Roßlau Regional Court followed the opinion of the Local Court and ruled that the plaintiff had no claim against the defendant for the surrender or eviction of the flat in dispute.

Although the sum of the outstanding amounts clearly exceeds the amount of two months' rent within the meaning of Section 543 (2) sentence 3 BGB, it must be taken into account here that the amounts from the enforcement notice in the amount of € 1,147.38 and the heating cost statement in the amount of € 667.21 are so-called back payments of operating costs due to a statement. In case law and literature, it is disputed whether the payment of rent within the meaning of Section 543 (2) (3b) BGB is also to be understood as the subsequent payment of operating costs on the basis of a statement. The BGH has so far left this question open.

The prevailing opinion in case law and literature is that arrears due to back payments of operating costs are not covered by section 543 (2) sentence 1 no. 3 BGB

The prevailing opinion assumes that additional payments of operating costs due to billing would not fall under Section 543 (2) sentence 1 no. 3 BGB. The Chamber agrees with this view, so that the arguments of the opposing opinion are not convincing. If back payments of operating costs based on statements of account are not to be subsumed under Section 543 (2) sentence 1 no. 3 BGB, then, as a further consequence, Section 543 (1) BGB cannot be affirmed. In this respect, arrears of payment of rent are defined as grounds for termination under Section 543 (2) BGB. In this respect, Section 543 (2) sentence 1 no. 3 BGB only refers to "rent" and is therefore decisive as to what is to be included here. "Rent" would consist of ancillary costs that the tenant has assumed in the form of money or services of monetary value. However, this does not apply to back payments for operating costs. This is because the additional payment based on the service charge statement does not have the character of a periodic rent instalment.

Inclusion of additional operating cost payments would encourage unjustified terminations

If the non-payment of a statement of operating costs were to be seen as the basis for a termination without notice, a landlord could terminate the tenancy without notice immediately after receiving such a statement if the amount of arrears was correspondingly high and the tenant failed to pay. As the statement of operating costs is due immediately, according to the opposing view, this claim would remain unpaid and the landlord would be able to terminate the tenancy immediately without notice. The landlord could also terminate without notice solely on the basis of a statement of operating costs as soon as he had failed to give notice of termination within a reasonable period during the course of the accounting year due to individual outstanding advance payments of ancillary costs, thus circumventing the requirement for a notice period.

Due to the question of whether operating cost balances after settlement are to be included in the term "rent" within the meaning of §§ 543, 569 BGB, the Regional Court allowed the appeal.

Source: Dessau-Roßlau District Court

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