Adjustment of operating cost prepayments in the context of sharply rising energy prices

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Avoiding high back payments

The most common rental structure today is a net cold rent plus ancillary cost prepayments. The latter is to be settled annually and a new advance payment can be determined for the future in connection with the settlement, § 560 para. 4 BGB.

With energy prices rising sharply, as we are currently experiencing, the advance payments based on the past are not sufficient to cover the costs actually incurred. The temporal latency alone can lead to serious deviations. The billing period is one year. Settlement for 2020 in December 2021 allows advance payments to be adjusted from February 2022. The tenant then pays advance payments in 2022 based on the average price level two years earlier.

High additional demands are the result. A particular problem for job center tenants is that the additional payment from an ancillary cost statement is not readily accepted (for details see e.g. here ). If the additional payment is rejected, the tenant has to pay for it out of his own pocket and can try to enforce his claims before the social court. In case of doubt, the landlord is then left with his claim. Ongoing ancillary cost prepayments are less problematic (§ 22 SGB II). It is also easier for all other tenants if the ongoing ancillary cost payments are more or less correct and high additional payments are not incurred. Because paying 100 euros more per month is easier for many than 1.200 euros in one fell swoop.

What is the legal situation?

The wording "in connection with" I used above is not entirely correct. The law speaks of "after a reckoning". The courts deduce from this that the amount of future advance payments must be based on the statement, so that errors in the statement, for example, also affect the adjustment of the advance payments. the BGH (VIII ZR 245 / 11) judged:

“An adjustment of the operating cost prepayments according to § 560 Para. 4 BGB is only justified insofar as it is not only based on a formally correct but also on a correct content statement. Foreseeable cost increases may be taken into account in the adjustment, while an abstract safety margin is not permitted. "

The justification is that the adjustment is intended to achieve the most realistic possible assessment of the advance payments, so that the tenant does not have a large credit balance or a high subsequent claim from the landlord in the later settlement (according to juris para. 15).

He had similar BGH that previously decided (VIII ZR 294 / 10):

"The last utility bill is the basis for an adjustment of the advance payments, but does not prevent the consideration of other circumstances - which have already occurred or will occur - and which are likely to affect the costs incurred in the current year. However, there is no room for an "abstract" security surcharge of 10% on the last billed operating costs. ... If such circumstances make advance payments of a different amount appear reasonable than would be expected based on the statement of the previous year, both the tenant and the landlord can make a corresponding adjustment. "

After all, there is no problem if the monthly prepayment amount is adjusted to 1/12th of the billing result. This needs no further explanation. If it is to be more, a certain amount of justification is required with the BGH, namely for the specific individual tenancy. In the aforementioned decision VIII ZR 294/10, the landlord had referred to the well-known sharp increase in energy costs, but without using the available price information to calculate in detail what this means for the present tenancy, and without relating the over-adjustment only to those billing items who were affected by the increase in energy costs. That was not enough for the BGH:

“In the statement of defense the defendant invokes in vain that the lessor is allowed to assert a “safety surcharge” of 10% as a result of the well-known general price increase. As stated, the landlord is not entitled to an abstract surcharge of this amount on the total operating costs of the previous year.

Even the additional reference to "the well-known massive increase in energy costs" cannot justify the adjustment claimed by the defendant. It is true that from the point of view of rising energy costs, an increase in advance payments over and above the amount that can be calculated from the billing result for the previous year can be appropriate. However, this presupposes that, from this point of view, the increase in energy-dependent operating costs is either limited to the advance payments for these operating costs or is only included proportionately in the calculation of the advance payments for the overall operating costs. Neither is the case with the adjustment made by the defendant. The increase in advance payments she claimed to be over and above the billing result of the previous year by a further 10% due to rising energy costs is not limited to separately reported heating costs or other energy-related costs, but includes the - not itemized - "operating costs" and "heating/ancillary costs" as a whole and in full.”

correct handling in practice

As a result, this means that it is possible to set higher advance payments for individual items. For this, however, there must be an actual starting point and this must be justified separately.

If, for example, the average gas price was 2020 euros per MWh in 8 and now 2022 euros per MWh in February 44, the gas consumption in 2020 can be used to extrapolate the expected costs in 2022 and a realistic discount can be derived from this. This must be explained accordingly in the letter of adjustment.

The tenant will not immediately recognize the advantage for himself, but will only read that he should pay more and perhaps want to defend himself against this. It is therefore useful, even if not legally necessary, to use a little explanation to explain to him that in this way a high additional payment for the current billing period is to be avoided and that it is possible for him. It is also easier to pay a certain amount more in advance each month than afterwards all at once. It doesn't hurt to explain that this is not money that the landlord claims for himself or from which the landlord earns additional income, but a purely transitory item that depends on the tenant's consumption and the general price development . If the tenant understands that the ancillary cost prepayments such as his electricity bill are based on deductions and his consumption and that the amount of the costs is ultimately based on the general price level, an understanding of increased deductions is more likely than if they are simply fixed, but of the amount deviate significantly from the accompanying statement.