Service charge statement – which costs may be passed on to tenants?

As a rule, the owner of a rental property may pass on to the tenant the ongoing operating costs that arise from the intended use of the building, outbuildings, facilities, installations and the land (see § 1 BetrKV – Operating Costs Ordinance). These costs are also known as recoverable service charges (umlagefähige Nebenkosten). Under § 2 of the Operating Costs Ordinance (BetrKV), the costs for the following items may be passed on:

• Property tax
• Water supply
• Drainage / sewage
• Heating costs
• Hot water supply
• Passenger or goods lift costs
• Street cleaning and refuse collection
• Garden maintenance
• Lighting
• Chimney sweeping
• Property and liability insurance
• Caretaker and janitor services
• Building cleaning and pest control
• Communal aerial system and broadband network
• Laundry room or laundry cellar
• Other service charges

Various further operating costs can fall under "other service charges". However, for these to be passed on correctly, the individual cost items must be specifically named.

Costs that explicitly may not be passed on are set out in § 1 Abs. 2 BetrKV:

• Administrative costs
  The landlord may not pass on to the tenant the costs incurred in administering the rental property. This also includes staff costs, e.g. for management or the tax adviser.
• Maintenance and repair costs
  The costs of restoring the property to the condition agreed in the lease may not be passed on either. This includes in particular remedying defects caused by wear and tear, ageing and weathering. Maintenance costs and operating costs generally differ in that maintenance costs are not recurring.

Under § 556 Abs. 3 BGB (German Civil Code), the service charge statement must be issued no later than the end of the twelfth month after the end of the billing period. If your billing period is the calendar year, you should therefore receive your service charge statement by 31 December of the following year. If your landlord is responsible for the late delivery, they can no longer demand any additional payment from you; any credit in your favour remains owed to you. A statement covering a period longer than twelve months is formally invalid.

Is the flat size stated in your tenancy agreement correct? Following the Federal Court of Justice (BGH) ruling of June 2018, it is the actual flat size – not the size stated in the tenancy agreement – that is decisive for calculating service charges. The BGH confirmed that this applies without exception. So it pays for tenants to measure their flat. The actual flat size must also be used for rent increases.
TIP: If, when measuring your flat, you find that it is at least 10% smaller than the size stated in your tenancy agreement, this constitutes a defect and entitles you to a rent reduction.