heating and hot water costs
April 14, 2011 | 50,00 EUR | answered by Jan Wilking
Our residential complex received a new heating system in 2005 through a contracting procedure. Until today, the heating system has been running without any economic adjustments:
- The heating system ran at full capacity during the night without night-time temperature reductions
(from 6.4.11 with night-time temperature reduction 22.00 - 5.00 hrs to 18 degrees Celsius for the apartments)
(from 6.4.11 with night-time temperature reduction 16.00 - 5.00 hrs to 18 degrees Celsius for the kindergarten)
- The circulation pump for hot water also ran 24 hours a day
(from 6.4.11 shutdown from 23.00 - 5.00 hrs)
The contractor is not obligated to ensure an economical operation of the heating system. What regulations has he violated? Do we have a claim for damages or do the tenants? How is the compensation calculated?
Greetings
Dear inquirer,
I am happy to answer your inquiry taking into account the facts you have provided and your efforts as follows:
It is not legally required for a contractor to improve energy efficiency. The contractor's liability can only arise if this was agreed upon at the time of contract. If such an agreement exists, only the contracting party (usually the owner, not the tenant) can rely on it. The tenant does not incur any damages, as they usually do not have to cover the additional costs (see further explanations below). The amount of damages to be compensated would likely be determined by comparing the actual costs incurred with the costs that would have been incurred if the system had been operated economically from the beginning. In case of dispute, this would need to be clarified through an expert opinion.
The landlord cannot demand the additional costs from the tenant. The Federal Court of Justice has ruled in various judgments that the landlord needs the tenant's approval for switching to heat contracting if the tenant is expected to pay more afterwards (Case No. VIII ZR 54/04 and Case No. VIII ZR 362/04). Exception: If the switch to a commercial heat supplier has already been reserved in the lease agreement (Case No. VIII ZR 202/06).
But even if such tenant approval were present in your case, the additional costs probably cannot be passed on to the tenant because the system was not operated economically. The legal obligation to ensure optimal heat supply arises from the principle of economic efficiency directly enshrined in § 556 paragraph 3 of the German Civil Code, supplemented by the objectives of Article 20a of the Basic Law, the Energy Saving Act and Regulation, and the Heating Costs Ordinance. Since these regulations are partially binding on the contractor as well, they should also be considered when interpreting contractual claims against the contractor.
Therefore, it is advised to promptly engage a local colleague specialized in contract and rental law to examine possible claims against the contractor with access to all documents.
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 in this initial consultation without knowledge of all circumstances, I cannot provide a final recommendation. If you wish for a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the matter with them while providing access to all documents.
Best regards
