The second rent – this is also often used to describe operating costs or ancillary costs.
As part of the secodn rent, the landlord has the right to transfer operating costs to his tenants by means of a rental agreement. This is exactly what is common in Germany and is provided for in standard form rental agreements. But that doesn’t mean that all agreements in rental contracts are effective.
What are operating costs?
The answer lies in the cost of regulation “. Operating costs are the costs that continually arise for the owner through the ownership of the land or by the intended purpose of the building, outbuildings, equipment, facilities and the land” (§ 1 BetrKV)
In addition, A distinction is made between cold and warm operating costs, i.e. the operating costs without or with the costs for heating and hot water.
It is important to note that the landlord may only pass on certain costs to his tenants . This includes:
- Property tax
- Water supply and drainage
- Heating costs as well as costs for the maintenance of the heating system
- Hot water supply
- Operating costs for an elevator, if any
- Garbage collection and street cleaning
- Garden maintenance
- Lighting (stairwell, basement corridor)
- Property and liability insurance costs
- Costs for a caretaker
- Running costs for a satellite system or a cable connection
- Operating costs for laundry facilities
- Other operating costs, for example for the maintenance of fire alarms , the cleaning of gutters or the maintenance of lightning rods.
The landlord may NOT pass these costs on to his tenant:
- Costs for repairs, maintenance and repair work
- administrative expenses
- Interest on real estate financing
- Proportional operating costs for an empty apartment in the house (these must be borne by the landlord)
- Irregular costs, for example for cutting trees, if this does not happen at regular intervals
Unless otherwise agreed, the (cold) operating costs are apportioned according to the proportion of the living space ( BGB; § 556a ). A different billing key can also be agreed for certain operating costs, for example billing based on the number of people (useful, for example, for the costs of garbage disposal) or according to the number of residential units in the house (conceivable for stairwell lighting, for example). Consumption-dependent operating costs, i.e. the costs for hot water and heating, must predominantly be billed according to actual consumption .
Alternatively, however, one may cost package for the cold operating costs are agreed.
It is common, but by no means automatic, that tenants have to bear the operating costs. The allocation of the operating costs is to be agreed explicitly in the rental agreement. If a corresponding clause is missing, the landlord pays the operating costs. However, according to recent jurisprudence, it is sufficient that the rental contract states that the tenant has to pay the operating costs. A list of the individual operating cost items is therefore not mandatory ( BGH; Az .: VIII ZR 137/15 ).
Avoid errors in the utility bill
The operating costs are usually transferred together with the rent in fixed monthly contributions. The landlord is obliged to bill the operating costs annually ( BGB; § 556 (3) ). Mistakes often occur here – annoying for tenants and landlords.
The utility bill must be correct in terms of both form and content. With regard to the formal criteria, the following must be included:
- orderly compilation of the total costs
- Information on the distribution keys
- Calculation of the tenant’s share
- Deduction of the advance payments made by the tenant
This information is necessary so that the billing is clear and understandable and can thus be understood by the tenant. However, this does not include the landlord having to attach copies of the individual accounting documents to the statement. However, if in doubt, the tenant must be given the opportunity to inspect the billing documents.
Formally incorrect statements result in the statement being ineffective as a whole.
This is different if the statement is incorrect in terms of content, for example because it contains a calculation error but is otherwise formally correct. Then it remains effective at least insofar as the landlord can correct this error afterwards. However, this must be done within one year of the end of the billing period, after which the landlord can no longer demand a higher additional payment.
One of the pitfalls for landlords: late billing. At the latest one year after the end of the billing period, the landlord must submit a utility bill to his tenant. It can happen that the tenant is entitled to a credit or that he has to make an additional payment. If the landlord misses the deadline, he is no longer entitled to additional payments. Then he can only adjust the level of the operating costs for the following year.
The alternative: flat-rate operating costs
However, landlords also have the option to bypass billing. This works by charging the operating costs as a flat rate. However, this must already be anchored in the rental agreement. The disadvantage: the landlord can no longer adjust this flat rate retrospectively if his actual expenses increase.
However, he does not have to pay anything back if the tenant has paid too much. If it turns out over time that the flat rate is no longer sufficient to cover the operating costs, the landlord can increase the flat rate. However, he then has to make a one-off statement so that the tenant can understand that the increase in the flat rate is justified.
How high can the operating costs be?
Landlords must observe the principle of economic efficiency when it comes to operating costs. But that does not mean that they have to regularly look for the cheapest providers, for example for electricity or gas. Economic efficiency simply means that you are not allowed to choose providers who charge disproportionately high prices. There are no further specific legal regulations on how high the operating costs may be.
The German Tenants’ Association has been determining the average operating costs in Germany for many years and publishes the results as an operating cost table. In the past few years, the average operating costs were around 2.20 euros per square meter.
However, there may be considerable deviations here regionally and also with regard to the properties of buildings. The amount of the operating costs actually incurred also depends, for example, on how high municipal taxes such as property tax or garbage collection are in the respective municipalities.
How well or poorly a building is insulated also plays a role.
Last but not least, the level of the operating costs is also determined by the individual user behavior of the tenants. Anyone who heats their apartment to 25 degrees must expect higher heating costs than those who don’t.