Operating cost in the rental law is costs, which will transfer by the use of a renting thing to develop and as additional expenses in the context of a lease to the tenant may.

Distinction and derivation

With respect to the linguistic usage are differentiated among other things:

• Operating cost, which develops for the supply of warm water and heating.
• (cold) operating cost, which seizes all remaining additional expenses.

The distinction is contentwise more applicable in:

• not reallocationable costs: after the legal regulation in "§ 535 is to be assumed that, which all costs are contained in the rent, it is, it is something else rent-contractually agreed upon.
• reallocationable operating cost: "§ the reallocation of the operating cost specified in the operating cost regulation permits 556 BGB on the tenant.

After the law operating cost is contained in principle in the rent. In the lease it can be agreed upon however that the tenant carries all or a part of the reallocationable operating cost separately. Only if such an agreement exists in the lease, the landlord can require the operating cost additionally to the basic rent. In principle only the Kostenpositionen specified in the lease must be carried by the tenant (whereby in opinion of the courts in addition, an overall reference to plant 3 is sufficient too "§ 27 Abs.1 of the IITH BV, see OLG Hamm, housing industry and rental law 1997, P. 542).

In place of enumerating the reallocationable operating cost in plant 3 too "§ 27 IITH BV since that the operating cost regulations to 1.1.2004 stepped, which contain the catalog of the reallocationable Kostenpositionen now in "§ 2 BetrKV. More than the operating cost specified here must pay the tenant in no case, even if further Kostenpositionen are mentioned in the lease.

A formulation is not sufficient in the lease after the iurisdiction that "“the tenant carries the usual operating cost"”. If only individual positions are thus specified in the lease, only these can be put down in the context of the annual account.

Operating cost regulation

After the operating cost regulation can grds. not to be put down:

• Administratives expense
• Maintenance and repair costs.

Exceptions apply to trade areas, with which administratives expense will transfer e.g. in a lump sum the tenant can, as long as it is guaranteed that these costs stand in direct connection with the rented surface and not the total building and its emptying and.

Operating cost in the sense of the operating cost regulation and thus is fully reallocationable:

• Real estate tax
• Water supply
• Drainage
• Heating - consumption and maintenance without repairs
• Water - consumption and maintenance without repairs
• Elevator - current consumption and maintenance without repairs
• Road cleaning and garbage disposal
• Building cleaning and pest control
• Garden care
• Lighting
• Chimney cleaning
• Special and liability insurance
• House-waited - without its work of the administration, maintenance or repair.
• Television connection
• House washing machines
• other operating cost.

A condition for the consideration of "“other operating cost"” in the context of the annual account is that also such Kostenpositionen (e.g. Gutter cleaning)

• explicitly in the lease are mentioned
• and such costs regularly recurring arise.

Account

The payment of operating cost can be agreed upon as lump sum (fixed amount without account) or as pre-payment (amount of anticipated payment with annual account).

Only over a rent-contractually agreed upon operating cost pre-payment is to be accounted for. This allocation procedure plans thus that the advances paid by the tenant are confronted and accounted for to the operating cost actually developed. A normal account must thereby data concerning the accounting period, over which (for each Kostenposition) resulted total costs and the used distribution code (e.g. after floor space or number of persons) contain; only like that the share of the cost for each Kostenposition which is allotted to the tenant is comprehensible. Further the tenant has with each account the right to require view of the account documents. For it an appropriate test period is entitled to the tenant. If assets for the tenant result, the amount must be disbursed; if the operating cost actually developed lay more highly than the advances, an additional payment at height of the difference is entitled to the landlord.

An important principle is that operating cost must correspond to normal management. In cases of doubt it is to be asked whether an economically thinking owner would have caused the costs also if he could not pass it on to the tenant.

At the latest 12 months at expiration of the accounting period is the tenant the account to communicate ("§ 556 exp. 3 BGB). Afterwards the landlord can make no more additional charges valid, it is, it has the delay not to represent. This is for example the case, if up to the period end yet all calculations are not present, without this is to be represented from the landlord to. - In response also the tenant must make objections valid against the account within 12 months, otherwise it is impossible thereby. However an exception applies also here, if it does not have to represent the late asserting of its objections. Debited to the tenant cannot be contractually deviated from these regulations ("§ 556 exp. 4 BGB).

The distinction between a lump sum and a pre-payment is important:

If a lump sum in the lease was agreed upon, then hereby only all costs are not taken off; without further contractual regulation also no adjustment for the future is possible.

It concerns a pre-payment (with account) applies itself:

• Suitability: both parties can require an adjustment of the pre-payment for an account;
• Periods: Within 12 months the landlord an operating cost account has to submit, for the tenant applies afterwards to 12 a period of one month to objections;
• Comprehensibleness: The aforementioned posts must be so represented that they can be assigned to the contractual regulations or the catalog of the operating cost regulation. In addition reallocations must be computationally comprehensible;
• Voucher insight right: The tenant must be allowed to take insight in reasonable way into the account to reason which are appropriate the vouchers; during public-promoted dwellings also copies of the account documents (against reimbursement of costs) can be required;
• Consumption costs: In principle consumption costs may be put down after a freely agreed upon conversion yardstick. Such an agreement is missing like that is relevant the portion of the floor space. The landlord has to later determine further the right a more exact reallocation by measuring devices.

Heating costs

To heating costs according to the regulations of the heating costs regulation the principle of the consumption-dependent account (S. applies however: "§ 2 heating costs regulation). The heating costs take thereby a special role. If the heating costs regulation applies and if the landlord does not account for against the defaults of the heating costs regulation consumption-dependently, the tenant may shorten the portion which is allotted to him around 15 per cent (HeizkostenV "§ 12 exp. 1 sentence 1)

Operating cost mirror

With the right to into the original vouchers after collecting main of an account exists for tenant inside and tenant an important examination possibility. In addition the German renters association and its - similarly a rent standard - federation and country-wide operating cost mirrors make regional organizations available, which can serve also landlords in the context of the Wirschaftlichkeitsgebotes as manual. The operating cost mirror is not however only a loose collection of data of the tenant associations and represents connection.

Literature

• Michael J. Schmid: Manual of renting additional expenses. Luchterhand publishing house, July 2005, ISBN 3-47205-376-3

Related links

• Operating cost regulation (BetrKV) as pdf.
• Heating costs regulation (HeizKostV) as pdf.
• WohnungsbindungsG - WoBind G as pdf.
• Operating cost mirror for Germany 2005 as pdf.
• Operating cost mirror North-Rhine/Westphalia

• Statement on the operating cost mirror

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