This judgment should please tenants

When it comes to assessing ancillary costs, landlords have so far benefited from a tolerance limit that is now falling. Tenants can now save money – if they measure precisely.

Beautiful living: some tenants will soon be happy about lower ancillary costs.

FThe actual living space is decisive for the settlement of operating costs, which also include heating costs. The previous tolerance limit, according to which owners could deviate 10 percent upwards or downwards from the area specified in the rental agreement, is no longer applicable. This emerges from a judgment of the Federal Court of Justice (BGH) from the end of May, which was recently published.

In the decision under the file number VIII ZR 220/17, the Senate for Housing Rental Law says goodbye to its longstanding jurisprudence and clarifies that the costs are to be determined “according to the actual circumstances and not the subjective ideas”. The court had already abandoned the tolerance limit in November 2015 – at the time, however, it was about rent increases. However, the actual living space is much more relevant for the allocation of operating costs. It is based on the square meters.

According to a survey by Mineko, a start-up from Berlin that specializes in checking operating costs, Germans pay ancillary costs of between 25 and 33 euros per square meter of living space every year. A few square meters more or less can quickly become a sum that is disputed in court.

“Operating cost billing will be fairer”

“This decision makes the operating and heating cost billing a little fairer,” says Lukas Siebnkotten, Federal Director of the German Tenants’ Association. Only the objective size of the apartment and not the one specified in the rental agreement can be a suitable accounting standard. Nevertheless, the consumer association raises concerns that tenants can only reduce their rent if their apartment is more than 10 percent smaller than specified in the rental agreement – in this respect, the previous rulings of the BGH remain.

The earlier regulation has ensured a certain degree of satisfaction, even if the operating cost statement for individual tenants could not be fair, says Gerold Happ, lawyer at the owners’ association Haus & Grund. “The ruling could now lead to more disputes in residential buildings with several tenants,” Happ points out. If a tenant claims a lower amount, this has effects according to the distribution key – other tenants would then have to pay more.

Owners of large residential portfolios, such as Vonovia AG, are not alarmed by the decision made at the end of May. “We do not assume that this ruling will have a major impact on our rental practice,” said a company spokeswoman for the FAZ. Nevertheless, she welcomed the fact that the decision creates greater clarity in the distribution of operating costs.