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Service charge statements for commercial premises: how they differ from residential

Costs only by agreement, no statutory cut-off period, strict transparency: what applies to service charges for commercial retail premises in Germany.

Anyone who lets residential flats is usually familiar with the rules on operating cost statements. For shop units, supermarkets and retail parks, however, different standards apply on several important points. Many disputes can be avoided if both parties understand these differences.

Only what has been agreed can be passed on

For residential premises, section 556 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) provides that operating costs (Betriebskosten) may be passed on to the tenant and defines what they are; the Operating Costs Ordinance (Betriebskostenverordnung, BetrKV) contains the catalogue. For commercial premises, section 578 BGB does not refer to section 556 BGB. Which costs a commercial tenant bears is therefore determined solely by the lease.

In practice, many commercial leases refer to the BetrKV catalogue and add further items. This is permissible as long as the clauses are sufficiently specific and transparent. Costs that have not been agreed cannot be charged.

Deadline: reasonable, but no cut-off

For residential premises, the statement must reach the tenant no later than twelve months after the end of the accounting period; after that, back-payments are generally excluded (section 556(3) BGB). For commercial premises this cut-off period (Ausschlussfrist) does not apply, not even by analogy, as the Federal Court of Justice (Bundesgerichtshof, BGH) ruled in 2010.

The landlord of commercial premises must nevertheless issue the statement within a reasonable period. According to the BGH, this period normally ends one year after the end of the accounting period. If it is exceeded, the tenant may demand the statement and need not make further advance payments. However, back-payments are not automatically excluded; limits arise from the lease and, in individual cases, from forfeiture (Verwirkung).

Allocation key

The lease should also set out the allocation key (Umlageschlüssel), for example by lettable area or by metered consumption. In retail parks with tenants of different sizes and uses, a clear key for each type of cost is particularly important. Unclear or changing keys are a frequent source of objections.

Inspection of receipts

The statement must be comprehensible to the tenant. Under section 259 BGB, anyone who must account for an administration involving income and expenditure has to provide an orderly statement and, where customary, the supporting receipts. Tenants can therefore ask to inspect the receipts on which the statement is based. Well-organised records save time for both parties.

Management and maintenance costs

Standard-form clauses in commercial leases are subject to the transparency requirement (Transparenzgebot) of section 307(1), second sentence, BGB. The BGH has developed a differentiated line of case law:

  • Management costs: A general allocation of management costs (Verwaltungskosten) in a commercial lease is not non-transparent. The term can be defined by reference to the BetrKV and the Second Calculation Ordinance (II. Berechnungsverordnung). The general principle of economic efficiency (Wirtschaftlichkeitsgebot) protects the tenant against excessive costs.
  • Centre management: By contrast, the BGH held that charging unspecified costs of “centre management” in a shopping centre in addition to management costs is non-transparent and invalid.
  • Maintenance of common areas: A standard clause that makes the tenant responsible for maintaining and repairing jointly used areas and installations without any cap on the amount is invalid.

For retail parks this means that cost items for shared car parks, access roads and building services should be clearly described and, where maintenance is concerned, capped.

Checklist

  • Rechargeable costs are listed expressly and clearly in the lease.
  • An allocation key is defined for each cost type.
  • The statement is prepared within one year after the end of the accounting period.
  • Management and centre management costs are clearly described.
  • Maintenance costs for common areas are capped.
  • Receipts are organised and available for inspection.

If you have questions about service charge statements for your property, please get in touch: ST 77 property management.

This article provides general information only and does not constitute legal advice in individual cases.

Sources

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