Permissibility of Changing the Allocation Key for Operating Costs: Requirements for Landlords
The Hanau Local Court, in its judgment of July 25, 2023 (Ref.: 32 C 162/22), issued a practically relevant decision regarding the handling of the allocation key for operating costs in a tenancy. The central question was under what circumstances a landlord is entitled to adjust the allocation key during an ongoing contractual relationship. The decision sheds light on essential aspects of tenancy law and sets standards for the legally secure design of operating cost statements.
Significance of the Allocation Key for Operating Costs
Basics of the Allocation Key
The allocation key determines how allocable operating costs are distributed among the individual tenants. Various options are available for this, such as allocation based on living space, number of persons, units, or—if individually measurable—actual consumption. The choice of key has a significant impact on the concrete cost distribution and is usually stipulated in the rental agreement.
Statutory Requirements
According to § 556a BGB, a distinction must generally be made as to whether an agreement regarding the allocation key has been made in the rental agreement or whether statutory provisions apply. In practice, the contractually agreed allocation key is binding unless the contracting parties effectively agree to a change, or a statutory provision applies as an exception.
Requirements for Changing the Allocation Key
Requirements for the Landlord’s Power of Amendment
It is of central importance that the landlord cannot unilaterally and arbitrarily change the allocation key. According to the case law of the Hanau Local Court, a change is only permissible if there is a factually justified, sufficient reason. Mere simplification of the billing process or, for example, a more economically favorable distribution from the landlord’s perspective is not sufficient by itself.
The court specifies that a change to the allocation key without the consent of the tenant is generally excluded, unless there is a contractual authorization or legal basis for this. In particular, a comprehensible, objective occasion is required—such as substantial structural alterations to the rental property or the subsequent installation of consumption-based measuring devices—to justify a deviation from the original key.
Legal Consequences of an Impermissible Change
If the allocation key is changed without sufficient reason and without the consent of the affected tenants, there is a risk that operating cost statements may be partially or entirely invalid. The tenant may object to such a statement or, if necessary, request a judicial review. This highlights that landlords, in particular, must carefully examine whether and to what extent a modification of the allocation key is permissible.
Specific Case at the Hanau Local Court
Facts of the Case
In the case to be decided, the landlord changed the existing allocation key for the distribution of operating costs unilaterally during the ongoing tenancy. The primary justification provided was the (supposed) advantage for the tenants. The affected tenants objected to this modification, citing the lack of a contractual basis and a purported unfair disadvantage.
Reasons for the Decision
The Hanau Local Court confirmed the legal opinion of the tenants. It held that a change to the allocation key for operating costs during an existing tenancy is invalid without mutual agreement and without sufficient factual reason. The court emphasized the protective function of tenancy law against unilateral changes by landlords and highlighted that deviations from the originally agreed provision in the rental agreement are permissible only in exceptional cases.
Significance for Tenancy Law Practice
For Landlords
The decision underscores that there are strict requirements for changing the allocation key for operating costs in a tenancy. It is advisable to have precise contractual arrangements to avoid later disputes.
For Tenants
Tenants can usually successfully defend themselves against the new allocation practice in cases of a unilateral change without a transparent and comprehensible justification and without individual consent.
Conclusion
The Hanau Local Court’s decision provides important clarifications for the allocation of operating costs in tenancy relationships and shows that changes to the allocation key are permissible only if there are sufficient and objective reasons. Both landlords and tenants face significant legal requirements and risks in this regard.
Note
This overview provides a non-binding summary of the current requirements for changing the allocation key for operating costs in tenancy relationships. For questions regarding contractual arrangements, rights and obligations relating to operating cost statements, or the judicial enforcement of claims, the lawyers at MTR Legal are happy to be available as contacts.
