Service charge settlement & levies
Service charges – often referred to as operating costs – are all ongoing costs incurred by the owner as a result of owning the property and operating the building. The landlord can pass many of these on to the tenants, provided this has been agreed in the tenancy agreement.
Typical apportionable ancillary costs
Typical apportionable ancillary costs in accordance with Section 2 of the Operating Costs Ordinance (BetrKV) are, for example: property tax, water/waste water, heating and hot water costs, waste collection, street cleaning, house cleaning, garden maintenance, elevator, lighting, janitor and building insurance. It is important that the rental agreement either lists each type of cost individually or refers to the BetrKV across the board. If there is no such provision, the landlord may not subsequently pass these costs on to the tenant.
Tip: It is best to use the wording that the tenant bears “all operating costs within the meaning of § 2 BetrKV” – according to current BGH case law, this reference is already sufficient and saves long lists.
Property tax and co.: apportionment in practice
The apportionment of property tax is often particularly in demand. The landlord can charge this municipal tax on property as part of the operating costs, as it is expressly mentioned in Section 2 BetrKV. However, in order to allocate the property tax to the tenant, it must be part of the contract.
In mixed-use buildings with residential and commercial units, it should be noted that commercially used areas are often taxed at a higher rate. In this case, the landlord should apportion the property tax proportionately so that residential tenants are not disproportionately burdened – for example, by showing the higher proportion separately for commercial space (see apportionment based on the principle of causation). As a general rule, if the landlord lives in one of the apartments himself, he may not pass on any service charges for this owner-occupied space to other tenants.
The annual service charge statement requires care: all costs must be broken down correctly and presented to the tenant in an understandable way.
Rights and obligations in the service charge settlement
If the tenant has made regular advance payments for service charges, the landlord must settle them once a year. The billing period usually covers 12 months (often the calendar year). The tenant must receive the statement of service charges no later than 12 months after the end of the billing period – after this period, the landlord can no longer make any additional claims. If the landlord does not meet this deadline, any claims for additional payments are forfeited. Conversely, the tenant’s entitlement to reimbursement of overpaid advance payments remains in force. The service charge statement mustinclude all total costs per cost type, the allocation key and the share attributable to the tenant as well as the advance payments made. If essential information is missing, the statement is formally incorrect and the tenant does not have to pay a correction.
Select allocation key
In most cases, the tenancy agreement specifies an allocation key according to which the total costs are distributed among the tenants (e.g. according to living space, number of persons or consumption). In the absence of an agreement, Section 556a of the German Civil Code (BGB) stipulates distribution according to living space as standard. However, certain consumption costs (heating, hot water) must be billed at least half according to consumption in accordance with the Heating Costs Ordinance. The appropriate allocation key depends on the type of costs: heating costs according to consumption, waste collection often according to the number of persons, elevator costs possibly in equal parts per apartment, property tax and insurance rather according to living space. It is important to adhere to the key consistently – deviations or changes may only be made with the consent of all affected parties or for good cause.
Check billing and appeal
Tenants have the right to check the service charge statement. They can request to see receipts, i.e. inspect invoices and receipts to check the accuracy of the costs charged. If the tenant finds errors, they should raise an objection promptly. As a landlord, you should take such objections seriously and correct the statement if necessary. Another common mistake is the
What to do in the event of non-payment of arrears? If a tenant fails to make an additional payment from the service charge statement, even though the statement is correct and due, this can – just like rent arrears – lead to a warning and termination in extreme cases. Landlords should therefore ensure that payments are made on time. Conversely, tenants’ associations advise tenants to pay on time first and then clarify any doubts.
Changes to ancillary costs
The Carbon Dioxide Cost Sharing Act (CO2KostAufG) has been in force since January 2023. Landlords must now contribute to the CO₂ costs for heating energy. The poorer the energy efficiency of the residential building, the higher the percentage of the CO₂ levy that the landlord pays. In very efficient buildings, the tenant bears almost all CO₂ costs, while in unrenovated old buildings, the landlord bears up to 90% of the CO₂ price. This distribution must be shown in the heating bill. Berlin landlords should therefore take these additional regulations into account when calculating ancillary heating costs – they can be an incentive to invest in better insulation and heating technology.
Conclusion: The service charge statement is an obligation with pitfalls for landlords. Deadlines must be adhered to, costs must be broken down correctly and contractual agreements must be observed. If you work carefully here, you will save yourself trouble and will rightly be reimbursed for your expenses by the tenant. Would you prefer to leave the service charge settlement to professionals or do you have questions about the allocation of individual costs? Contact ADEN Immobilien – we support Berlin landlords with our expertise and service for all rental issues!
Frequently asked questions about service charge billing & allocations
All those listed in § 2 of the Operating Costs Ordinance, if agreed in the tenancy agreement: including property tax, refuse collection, heating, water.
No later than 12 months after the end of the billing period – otherwise the entitlement to subsequent payment expires.
In the event of a justified additional claim, termination without notice may be declared after a reminder.
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