Flat-rate operating costs
As a landlord, you can agree on a flat-rate operating cost for the cold operating costs instead of advance payments for operating costs (§ 556 BGB). In this case, you are not obliged to prepare an operating cost statement. Additionally, you do not have to issue credits if the actual costs are lower, but you bear the risk if the flat rate does not fully cover the incurred costs.Exempt are heating and hot water costs, which usually must be billed based on consumption according to the Heating Costs Ordinance.
Adjustment of the flat-rate operating costs
In the case of an agreed flat-rate operating cost, the landlord may pass on increased operating costs to the tenant by means of a declaration in text form in accordance with § 560 para. 1 BGB, provided that the tenancy agreement contains a corresponding adjustment agreement.
The declaration is only effective if the reason for the increase is explained in a comprehensible manner.
The increased flat rate is to be paid according to § 560 para. 2 BGB at the earliest from the second month following the receipt of the notice. For example, if the tenant receives the adjustment notice in April, they must pay the increased operating cost flat rate at the earliest from June.
If the operating costs decrease, the flat rate must be reduced accordingly in accordance with § 560 para. 3 BGB.
A corresponding template for adjusting the operating cost flat rate can be found in Immodio under Templates.
A corresponding adjustment agreement is, of course, included in the Immodio lease agreement.
Advantages of flat-rate operating costs
No annual billing obligation: As a landlord, you do not have to create an operating cost statement.
No reimbursement risk – your tenants are not entitled to a refund, even if the actual costs are lower.
Disadvantages of flat-rate operating costs
Cost risk remains with the landlord – if the actual operating costs exceed the flat rate, you as the landlord must cover the difference yourself.
Heating and hot water costs usually still have to be billed based on consumption. However, Immodio supports you in this by allowing you to carry out your heating cost statement completely digitally.
Billing of warm operating costs (heating costs and hot water)
A flat-rate billing of heating costs is impermissible and ineffective, as the provisions of the Heating Costs Ordinance (HeizKV) take precedence over contractual agreements according to § 2 HeizKV. As a landlord, you are therefore obliged to record the proportional consumption of the users for heating and hot water (§§ 4 and 5 HeizKV) and to distribute the costs according to actual consumption (§§ 6 to 9 HeizKV). A warm rent orheating cost flat rate, which is charged independently of individual consumption, violates these provisions and is therefore not legally effective.
Exceptions in which a flat rate for heating and hot water costs is permissible are listed in §11 of the Heating Costs Ordinance and include, among others:
In buildings with no more than two apartments.
When the costs of measurement would be disproportionately high.
In buildings or units that are only used for a short period (e.g., vacation apartments, seasonal accommodations, guest houses).
Student and senior residences.
In the case of a flat-rate operating cost, always list the heating costs separately, because according to the Heating Costs Ordinance (§ 6 para. 1 HeizkostenV), heating and hot water costs must generally be billed based on consumption.
To do this, click on the corresponding button ‘List heating costs separately’, open the input window, and enter the heating costs there so that you can subsequently settle them with the tenant. Only by listing the heating costs separately can you, in this case, charge the flat-rate operating costs while also properly billing the heating costs at the end of the billing period.
Fair use regulation for a flat-rate service charge
A flat-rate service charge basically means: The tenant pays a fixed monthly amount with which the agreed operating costs are covered. A subsequent statement does not take place. Additional payments or refunds are therefore generally excluded with a genuine flat rate.
A 'Fair Use Policy', according to which the landlord can simply charge additional costs in the event of higher consumption, is therefore problematic and would be legally contestable. In the case of a flat rate, the landlord generally bears the risk that the actual costs will be higher than the agreed flat rate.
An exception could possibly be represented by statutory claims for damages. In cases of extreme, abusive, or deliberately wasteful consumption, the tenant may possibly be liable for damages due to a breach of duty according to §§ 241 para. 2, 280 BGB (LG Oldenburg ZMR 2002, 200). However, the assumption of a breach of duty is to be limited to extreme cases and therefore only concerns exceptional cases; normalexcess consumption is usually not sufficient.
If you would like to make a corresponding agreement, you can insert a self-formulated passage in the lease contract assistant in the step Additional Agreements under Individual Agreements. Immodio recommends in this case that you seek individual legal advice from a specialized lawyer.