Neustadt Administrative Court, 21 March 2013, Ref.: 4 K 866/12.NW
In principle, everyone must dispose of their own waste. This follows from the polluter-pays principle in waste legislation. However, private households generate small quantities of household waste that they cannot dispose of themselves. The disposal of such waste is therefore traditionally assigned to the municipalities.
The fees incurred for this are borne by the property owners. However, waste disposal charges can be passed on to tenants as ancillary costs.
Cases in which tenants do not pay the waste disposal fees or do not pay them in full are problematic. The question then arises as to whether the landlord can be held liable as the owner. The Neustadt Administrative Court dealt with such a constellation in the above-mentioned judgement.
Facts of the Case:
The landlord takes the city to court for setting waste disposal charges against him
The plaintiff objected to being charged waste disposal fees as a homeowner.
He was the owner of two properties. At the plaintiff's request, the waste disposal fees for these properties were assessed by the defendant directly against the tenants.
Tenants had not paid the waste disposal fees
However, various tenants did not pay these waste disposal fees in full between 2006 and 2008. As a result, the defendant subsequently claimed outstanding waste disposal fees from the plaintiff as the owner.
The plaintiff lodged an objection to each of the defendant's fee notices, which the defendant's municipal legal committee rejected in its objection notices dated 2 December 2011. The plaintiff then filed an action.
Judgement of the Neustadt Administrative Court:
Administrative court rules that the fee notices are lawful
The VG Neustadt did not follow the plaintiff's opinion and ruled that the admissible action was unfounded. The fee notices issued by the defendant on 5 February 2009, 31 March 2009 and 21 July 2011 as well as the corresponding objection notices issued on 2 December 2011 were lawful and did not infringe the plaintiff's rights.
The contested waste disposal fee notices have their legal basis in § 7 para. 1 of the Municipal Tax Act (KAG) in conjunction with §§ 1 and 2 para. §§ Sections 1 and 2 (1) and (2) of the defendant's statutes on the levying of user fees for waste disposal dated 21 December 2005 (AGS).
Accordingly, the defendant charges waste disposal fees for the use of its waste disposal facility. These regulations were in accordance with higher-ranking law and were not objectionable under the principles of charging law.
As the owner of the property, the plaintiff was liable for the fees
According to § 2 para. 1 and para. 2 sentence 1 AGS, the plaintiff as the owner is liable for these fees. The charging of the owner does not violate higher-ranking law. Rather, it is a permissible determination of the content of the property (Art. 14 para. 1 sentence 2, para. 2 GG).
It is the financial continuation of the transfer obligation standardised in Section 13 of the Closed Substance Cycle and Waste Management Act, as the landowner is also a waste owner - in addition to his tenants, leaseholders or similar users, if applicable.
The existing responsibility of the landowner for the waste located and generated on his land constitutes an obligation associated with the economic use of his land, which is suitable and necessary to ensure proper waste disposal.
Property owner can assert recourse claims against its tenants
The respective property owner is at liberty to take recourse against their tenants or leaseholders under civil law. It would be possible to reduce the risk of insolvency by providing a deposit or guarantee. In view of this, it was neither disproportionate nor arbitrary to require the plaintiff, as the owner of the property, to pay waste disposal fees for his properties.
The objection that the defendant should have informed the plaintiff in good time about existing fee arrears of his tenants does not affect the plaintiff's statutory fee liability. At best, the plaintiff could derive a breach of duty by the defendant and a resulting claim for damages from this allegation. However, this is irrelevant in the present case because pursuant to Section 226 (3) of the German Fiscal Code, which applies here pursuant to Section 3 (1) No. 5 KAG, the plaintiff can only offset claims arising from the obligation to pay fees against undisputed or legally established counterclaims. This is not the case with the conceivable claim for compensation based on the plaintiff's submission.
The city is also not obliged to inform the landlord of its tenants' arrears
Furthermore, the defendant is not obliged to inform the owners promptly about any arrears in fees of their tenants. This would involve a very large administrative effort in the area of the mass business of "waste disposal fees", which could not reasonably be expected from the users of the waste disposal facility.
If the owner decides not to pay the waste charges incurred for his property himself and then pass them on to his tenants as ancillary costs, but - as in the present case - to have his tenants assessed directly by the property management company, the owner also loses control of his workload. It is not primarily the responsibility of the property owner to compensate for this. Rather, it is the obligation of the landlord or owner to obtain information from the property management company about any arrears of fees owed by the respective tenant, particularly in the event of the termination of a tenancy.
Source: Neustadt Administrative Court
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