Which service charges may be apportioned?
The owner of a leased property may, in principle, pass on to the tenant the ongoing operating costs incurred in the intended use of the building, ancillary buildings, facilities, equipment and land (cf. § 1 BetrKV). These costs are also referred to as apportionable service charges. According to § 2 of the Operating Costs Ordinance, the costs for the following items can be apportioned:
- Property tax
- Water supply
- Heating costs
- Hot water supply
- Passenger or freight elevator costs
- Building cleaning and pest control
- Garden care
- Chimney cleaning
- Property and liability insurance
- Caretaker and janitor
- Community antenna system and broadband network
- Washroom or laundry room
- Other ancillary costs
Other service charges may include various other operating costs. However, in order for these to be properly apportioned, the cost items incurred must be specified.
Which operating costs may explicitly not be passed on to the tenant?
Explicitly non-allocable costs are regulated in § 1 (2) BetrKV:
- Administrative costs
The landlord may not pass on to the tenant the costs incurred for the administration of the rented property. This also includes personnel costs, e.g. of the management or the tax consultant.
- Maintenance and repair costs
The costs incurred in restoring the contractually agreed condition may also not be apportioned. This includes in particular the removal of defects due to wear and tear, aging and weathering. Maintenance and operating costs generally differ in that maintenance costs are not recurring.
Time and settled period of the service charge settlement
According to § 556 Para. 3 BGB, the service charge settlement must be made by the end of the twelfth month after the end of the settlement period at the latest. As a rule, the service charge settlement should therefore be sent to you by 31.12 of the respective year. If your landlord is responsible for a delayed delivery or if the settlement is made over a longer period of time, the service charge settlement is invalid and thus subject to the statute of limitations.
Time limit for objection in case of incorrect service charge settlement
The period for objection is also regulated in § 556 para. 3 BGB. After receipt of the service charge settlement, the tenant has in principle twelve months to present his objections.
Service charges & apartment size - it pays to measure again!
Is the size of your apartment stated in the rental agreement correct? According to the ruling of the Federal Court of Justice (BGH) of June 2018, the actual size of the apartment - and not the size stated in the rental agreement - is decisive for the calculation of the service charges. The BGH confirmed that this applies without exception. It is therefore worthwhile for tenants to measure the size of their flats. The actual size of the apartment should also be used for rent increases.
TIP: If you find out when calculating the apartment size that it is at least 10% smaller than the size stated in the rental agreement, this is a rent deficiency and entitles you to a rent reduction.