Hamburg Local Court, judgement of 21.12.2022, Ref.: 49 C 149/22
The items in an operating costs statement must be based on the figures in the Operating Costs Ordinance; collective items are not permitted. They are not formally correct even if they materially only account for one type of cost, because the tenant should be able to determine which individual items are involved solely on the basis of the statement, without inspecting receipts. However, the formal invalidity of individual items does not mean that the entire statement of operating costs is invalid.
In the lawsuit before the Hamburg Local Court, a landlady asserted claims against her tenants from an operating cost statement. The tenants considered the statement to be formally invalid as it contained the items "general electricity" and "caretaker/garden/stairs". These were inadmissible collective items. The court shared this view and only upheld the claim with regard to the other items on the statement.
Facts of the Case
Landlady sued tenant for back payment of operating costs
The plaintiff is the landlord and demands payment of an operating cost balance from the defendant tenants. It was agreed between the parties that the operating and heating costs would be billed annually. The statement for 2020 resulted in an additional payment of EUR 1,528.23. This included the cost items "general electricity" in the amount of 156.81 euros and "caretaker/garden/stairs" in the amount of 1,032.93 euros. The defendants objected to this statement on the grounds that these items in the statement were not formally correct. The plaintiff argued that the garden and staircase items should have been listed together with the caretaker item, as the latter carried out the work.
The defendants are also of the opinion that the plaintiff cannot assert any further claims from this statement of operating costs due to the formal invalidity of the two items. The plaintiff therefore brought an action before the local court for payment of the operating costs in the amount of EUR 1,528.23.
Hamburg Local Court:
The court partially upheld the claim and ordered the defendants to pay 338.49 euros. The plaintiff was only entitled to payment of the other items listed in the statement of operating costs, but not with regard to the items "general electricity" and "caretaker/garden/stairs". These items were formally invalid and therefore not to be taken into account. However, this does not lead to the invalidity of the entire statement; it is merely to be treated as if it did not contain the formally invalid items.
With regard to the item "general electricity", reference is made to §2 No. 11 BetrKV. According to this, the costs for lighting in the common areas can be allocated to the tenant in the operating cost statement. The ordinance does not provide for the allocation of other electricity costs. The designation of the cost item as general electricity may include the lighting costs, but leaves open whether other electricity costs, such as those for the doorbells, are included. Only a designation corresponding to the figures in Section 2 BetrKV makes it clear that only the permissible items are included. The item "general electricity" is therefore formally invalid and the plaintiff is not entitled to reimbursement of the invoiced 156.81 euros from the defendants.
Local court considers collective positions in the BKA to be formally invalid
The item "caretaker/garden/stairs" is also formally invalid. The mixing of different costs in one item in the operating costs agreement is not permitted. In this regard, the court also referred to a judgement by the BGH (WuM 2017, 205). The reason for this is that the statement of operating costs should enable the tenant to immediately recognise which specific costs are being billed without having to look at receipts. This is not possible in the case of a mixed item, even if only one cost item is actually billed.
The costs for a caretaker can be allocated to the tenant in the operating costs statement in accordance with Section 2 No. 14 BetrKV. This can also include the costs for garden maintenance or stairwell cleaning if, as in this case, they are carried out by the caretaker. Insofar as § 2 no. 14 stipulates that the costs of nos. 2 to 10 and 16, i.e. also the costs for garden maintenance and stairwell cleaning, are not to be recognised, the court is of the opinion that this merely means that these costs may not be charged twice. If they are billed as the caretaker's work, the statement of operating costs may not include an additional item for this work.
It must be clearly recognisable to the tenant which part of the costs covers which activity
In the present case, however, this does not change the fact that the items in the statement of account in dispute were neither billed separately nor summarised as caretaker activities. The tenant cannot recognise which part of the costs is attributable to which part of the item and whether the caretaker performs these activities at all without inspecting the relevant receipts. Therefore, in the opinion of the court, the item "caretaker/garden/stairs" also represents a formally inadmissible mixed item. The plaintiff is therefore not entitled to reimbursement of the costs in the amount of EUR 1,032.93.
Source: AG Hamburg
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 changes in the subject matter, liability and guarantees are excluded.Important Note: The content of this article has been prepared to the best of our knowledge. However, due to the complexity and constant changes in the legal field, we exclude liability and warranties.
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