Apportionability: What does that actually mean?
In the rental agreement, apportionments are those costs that the landlord can pass on to his tenants. This is because, in addition to the rental costs, other cost factors such as operating costs and ancillary costs also play a role when renting apartments. It is a recurring topic of dispute as to who is ultimately responsible for these. Exact knowledge of tenancy law is therefore useful. There are various legal bases for apportioning costs to the tenant. The Operating Costs Ordinance and the German Civil Code are worth mentioning. Not all costs are apportionable. If these are nevertheless part of the rent, the tenants have the possibility to take legal action against this. Basically, costs for maintenance or repair and for administration are not apportionable. Section 556 of the German Civil Code (BGB), for example, stipulates that you can only apportion operating costs if this has been agreed with the tenant. In addition, however, the Operating Costs Ordinance must be observed.
Required reading for landlords: The Operating Costs Ordinance
Some unavoidable costs arise in the course of using an apartment. And as a landlord, you are allowed to pass these on to your tenants. If you want to know what these are in detail, you should take a closer look at the Operating Costs Ordinance. Since the settlement of ancillary costs is always a point of contention between landlord and tenant, the Operating Costs Ordinance is of great importance. This has undergone another revision in 2019 and lists exactly what belongs to the apportionable costs. A total of 17 items are listed in this ordinance. This also makes it clear what are non-apportionable operating costs: These include all items that are not included in the BetrKV.
These costs can be apportioned to the tenant
Which costs can be apportioned to the tenant? If you want to answer this question, you can get the answer here.
You can apportion the house charges to your tenants. For example, the costs for waste disposal and the janitor or the costs for heating jointly used rooms as well as their supply with electricity belong to the house charges. These are apportionable costs.
Landlords can apportion property taxes to their tenants, as these are part of the ongoing public charges. These also include contributions to water and soil associations or dike levies, if these are relevant.
You cannot pass on the costs of heating repairs to your tenants. Instead, landlords charge heating maintenance costs through the ancillary heating costs.
If modernization of the property in question takes place, the landlord is allowed to make an apportionment for modernization costs in the amount of eight percent. The allocation is made to the annual rent, but a rent increase is only possible up to three euros per square meter within six years (capping limit). This is a special form of rent increase in accordance with Section 559 of the German Civil Code (BGB).
In the case of existing gardens, landlords can pass on the costs of garden maintenance to their tenants. However, this is not possible if the green areas are newly landscaped.
The costs for the chimney sweep are also apportionable service charges. This applies to all measures within the scope of the Federal Immission Control Act.
Overview of non-allocable costs
As a landlord, you cannot apportion some costs. Here you can find out in compact form what these are in detail.
Would you like to apportion liability insurance to your tenant? This is not possible with the landlord's private liability insurance. The situation is different with building liability, which is apportionable.
You cannot apportion repair costs to tenants. In principle, these must be paid by the landlord. An exception exists only for small amounts up to a certain limit, which is usually 100 euros.
They belong to the non-allocable costs according to § 1 para. 2 no. 1 BetrKV and are therefore not operating costs.
Rental costs for smoke alarms
Rental costs for smoke detectors are not apportionable. This was decided by the Federal Court of Justice in its ruling of 11.5.2022 (VIII ZR 379/20).
Account management fees
These are part of the costs for administration and therefore not apportionable.
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