Excessive utility bill for 2006 with unclear delivery date (deadline compliance?)
July 6, 2009 | 30,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello,
In early May 2009, I received a payment reminder for the operating costs of 2006 from my former landlord (an estate management company). The wording was: "Upon reviewing our bank statements, we noticed that... you are in arrears... etc." (This amounts to 1500 euros for a just under 60 sqm apartment, and was also similarly high in 2005, which I promptly paid without any problems because I didn't want any stress).
In response, I wrote back saying that I did not receive this statement (I really can't find it in my records) and requested copies of the statement. I received these (dated May 2007) with the following comment: "The statements were delivered to your respective addresses by registered mail with the printed dates. There was no return, so it is ensured that you received both statements on time." (I thought I also didn't receive the 2007 statement, but I did find it in my records and paid it on time - I admit I didn't always have clarity due to temporarily having two residences at the time. 2007 was sorted out, also proportionally high for 6 months).
I then requested the proof of delivery in writing. The response was a letter saying: "The operating costs statement for 2006 was delivered to you on 22.05.2007 in a legally enforceable manner by messenger (witness Mr. X from the property management, delivered by Mr. Y unknown to me) into the mailbox at Soundsostraße (old address, I moved in mid-2007). The corresponding proof list with signatures is enclosed."
Attached was a copied list (Title: Proof list for the delivery of operating costs statement 2006 by deposit in the mailbox for Soundsostraße XX) with all tenants and the signatures of the above-mentioned gentlemen in duplicate copy.
I am wondering (and asking you) how I should proceed given the exorbitant amount of operating costs and the conflicting information about the delivery. My deadline for objections has expired, unless the landlord could prove that I received the statement on time. Is a witnessed mailbox delivery actually legally enforceable? And if not, what should I do now to act wisely?
Thank you for your help!
Dear advice seeker,
Thank you for your inquiry!
I would like to address your questions as follows, taking into account your input and description of the situation:
1.) Is a witnessed mailbox delivery admissible in court?
Yes, such a delivery is admissible in court. It is crucial that the landlord can prove the receipt of the relevant utility bill.
For this purpose, he generally has several options.
To clarify whether such a delivery is sufficient, it must be determined what constitutes receipt within the meaning of § 130 BGB.
In general, receipt means that the declaration of intent (in this case, the utility bill) has reached the recipient's sphere of control (i.e., you), allowing the recipient the opportunity to become aware of it.
In the case of a delivery into the mailbox, as described by you, by the landlord's messenger, it is usually the case that this requirement is met.
Now, in order to potentially enforce a claim in court, the landlord must also be able to prove the contents of the document, i.e., that it was not a blank piece of paper or general information, but specifically the utility bill.
This can also be proven by the messenger (as a witness in court), provided that the messenger saw the document before putting it in the mailbox, which I assume.
2.) And if not, how should I proceed wisely now?
Ultimately, it would be advisable to engage a local lawyer to represent your interests, including reviewing deadlines and deliveries.
According to § 556 para. 3 sent. 2 and 3 BGB, the landlord has a maximum of one year after the accounting period to claim additional utility payments from the tenant.
If he makes this claim after the deadline, a court enforcement is generally excluded, as it would be too late.
For example, a payment request in May 2009 for 2006 is clearly too late.
I hope to have provided you with an initial legal orientation and wish you success in your next steps!
I would like to conclude by pointing out the following:
The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the circumstances.
Adding or omitting relevant information can lead to a completely different legal assessment.
I hope that my explanations have been helpful to you. You are welcome to contact me through the follow-up option on this platform or via my email address.
I wish you a pleasant Monday evening!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/57774
