Tenant demands return of operating cost prepayments.
April 28, 2015 | 35,00 EUR | answered by Jan Wilking
Dear Sir or Madam,
I am writing to you as a landlord and requesting a response.
It concerns a rental agreement from 01.04.2012 - 31.03.2015. In this rental agreement, a prepayment of operating costs of €150.00 was requested. The landlord and the tenant agreed, at the beginning of the tenancy, verbally and mutually, that despite the prepayments, no annual operating cost statement would be provided. Therefore, any claims from the operating costs are void. The tenant did not claim a right of retention during the tenancy and never requested an operating cost statement.
After the termination of the lease, the tenant is requesting a refund of all prepayments from 01.04.2012 - 31.03.2015 from the landlord. A total of €5400 is being demanded by the former tenant's lawyer.
Now my question:
How should I, as the landlord, proceed? Is this demand from the tenant justified? What steps should I take?
Thank you.
Sincerely,
Dear inquirer,
I am happy to answer your inquiry taking into account your description of the situation and your efforts as follows:
Based on your description, I assume that a flat-rate operating cost without an annual settlement was agreed with the tenant. This is generally permissible, see § 560 paragraph 2 BGB. However, the proof of this orally concluded agreement could be problematic in your case, with the tenant's long-term tolerance being considered as an indication of this (see LG Lüneburg, 02.08.2006 - 6 S 56/06 with further references).
Please note that even with an agreed flat rate, according to the Heating Costs Ordinance, heating and hot water must be billed based on consumption.
Therefore, you should promptly engage a lawyer specializing in tenancy law to specifically examine and possibly reject the claims in this matter. The colleague could also assess for which periods an account (if necessary) can still be created in a timely manner.
I hope to have provided you with a helpful initial orientation. If you have any doubts, please use the free follow-up function.
Sincerely,
Jan Wilking, Attorney at Law
