Property Law

Landlord and tenant: service charges and heating costs

Can a landlord demand full payment of heating costs when the meter has not been calibrated? A court in Germany has ruled that he can, provided he can prove the meter correctly measured the amount of heat used (07.05.2013 Az: 2 C 992/11).

© ferkelraggae-Fotolia

© ferkelraggae-Fotolia

Tenant’s claim

The tenant in the case claimed that as part of the service charge under his tenancy agreement he had been paying an inflated price for heating, as the meter had not been calibrated. As a result the tenant demanded a refund of over 700 euros for payments made between 2007 and 2009.

Service charge calculation

The court rejected the claim on the grounds that the landlord was able to prove, using a state-accredited testing authority for heat measuring instruments, that the meter was working properly and had correctly measured the amount of heat used. The court held that the tenant had unjustifiably sought a 15% reduction in the service charge under § 12 sub-paragraph 1 no. 1 of the Heating Costs Regulations.

The judges relied on the case law of Germany’s Federal Supreme Court (Bundesgerichtshof) which held that landlords are entitled to receive service charge payments from the tenant in accordance with heat consumption.

Service charges in practice

The decisive point in this case is that the calibration of a heating meter does not necessarily have to be up to date before a service charge invoice can be made out. Provided the meter correctly measures the amount of heat used, a tenant will have no action against a landlord.

The judges also reached the correct conclusion that it is the landlord who carries the burden of proving that an uncalibrated meter correctly reads the amount of heat used.

The court’s judgment is therefore commendable.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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