The XIII. Civil Senate of the Federal Court of Justice (BGH) ruled on 12 January 2022 (VIII ZR 151/20) on the legality of the reduction declared by the tenant pursuant to Sec. 12 (1) sentence 1 of the German Heating Costs Ordinance (HeizkostenV) due to non-consumption-based billing of heating and hot water costs. In the underlying facts, the plaintiff tenant demanded repayment of the rental security deposit from his landlord after the end of the tenancy. The defendant landlord offset the claim against claims for back payments for operating costs.
In its decision, the Senate found that the operating cost accounts for the years 2016 and 2017 had not been settled on the basis of consumption and that the plaintiff was therefore entitled to a reduction of 15 percent under Sec. 12 (1) sentence 1 of the HeizkostenV.
The building in dispute has a central connected system for supplying the apartments with heat and hot water, so that the costs incurred uniformly for this are to be divided according to Sec. 9 (1) HeizkostenV. For this purpose, according to Sec. 9 (2) sentence 1 HeizkostenV, the heat quantity attributable to the central hot water supply system had to be measured with a heat quantity meter. However, the building did not have a heat meter. In such cases, the landlord was also not allowed to substitute the calculation formula listed in Sec. 9 (2) sentence 4 HeizkostenV, since the measurement of the volume of consumed water by installing a heat meter had been possible in principle.