Apportionability of operating costs for life annuities/lifetime occupancy rights
May 25, 2011 | 40,00 EUR | answered by Jan Wilking
Dear Sir or Madam,
With a notarial contract, we acquired a 2-family house based on a life annuity and lifelong right of residence for the ground floor. We have been calculating the operating costs with the tenant upstairs and the beneficiary on the ground floor without any issues since then. Unexpectedly, we recently received a demand from the beneficiary's lawyer to repay the calculated operating costs for property tax B and for building and liability insurance, as these are not chargeable. There are no details on operating costs in our purchase agreement from 1994.
My question is: In which law or ruling is it determined which operating costs are chargeable in our contractual relationship? The legislator clearly defines which operating costs are chargeable in a tenancy agreement.
Dear inquirer,
I am happy to answer your inquiry taking into account the circumstances you have described and your efforts as follows:
A right of residence (§ 1093 BGB) can be agreed upon for a fee or free of charge. If the notarial contract does not contain a clear agreement on the extent to which the beneficiary of the right of residence is obligated to maintain the building and premises, and furthermore, whether and which operating costs the beneficiary of the right of residence should bear, he generally does not have to pay any operating costs to the owner. Because an obligation of the beneficiary of the right of residence to pay operating costs does not arise from either the real right of residence itself or from the legal relationship existing alongside the real right of residence (see BGH, judgment of 25.9.2009, V ZR 36/09).
Thus, the beneficiary must generally bear the ancillary costs incurred by use (such as waste disposal, water, heating) himself, but not the usage-independent property burdens such as property tax or building insurance.
Based on your description, I assume that you have taken on the obligations of the residential right holder with his consent and have taken care of heating the apartment, etc., and then passed on these costs to the beneficiary of the right of residence through an operating cost statement. However, since there does not seem to be a written agreement on this, this was either based on an oral or implicit agreement between you and the beneficiary. Whether property tax and building insurance were also included in this (which are also chargeable with a corresponding agreement) cannot be assessed from a distance, of course. In view of the years of practice, one could argue that an (implicit) agreement was made that the usage-independent costs would also be proportionally covered, as the beneficiary apparently accepted the operating cost statements for several years.
In summary:
The costs for property tax and building insurance can be passed on to the beneficiary of the right of residence. However, as in tenancy law, this requires a specific agreement with the beneficiary if it is not regulated in the notarial contract.
I hope this provides you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that I cannot give you a conclusive advice within the scope of an initial consultation without knowledge of all circumstances. If you wish for a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the situation with them with access to all documents.
Kind regards
