is for the 90's particularly a service taken in Germany von and Vermietern ever more frequently in requirement, which is usually offered by medium-size heating engineering enterprises as well as public and private energy suppliers. Core of the business (English contract) is the paging of the capital outlays for the first establishment or modernization of central heating systems of the building owner at the Contractor. The houseowner grants the exclusive right to the Contractor in a heat supply contract with long running time (10-15 years) to supply its tenants and/or the real estate if necessary with heating warmth and warm water from a central heating. The heat supplier (Contractor) is by the long running times able to put its capital outlays down into the heating systems on 10 to 15 annual instalments. Since with the new, modern heating systems because of the often good efficiencies much energy is saved at the same time, on years distributed, in the context of the annual account of heating costs in calculation "capital outlay addition placed" is noticeable to most tenants during a plausibility check of the heating cost height not immediately.

Thousands of landlords made use in the last years of this new service. The market reached a sales volume of approx. 1 billion in Germany "€ per year. Critical this service is to be regarded whenever the tenants in the context of the net cold rent or over one the net cold rent broken open modernization addition the capital outlays for the heating system were already broken open proportionately, which same costs are placed to the tenants by the Contractor with permission of the landlord however on 15 years distributed in the context of the account of heating costs a second time in calculation. In the context of the rental law reform 2001 the legislator avoided a legal regulation, so that exists momentarily in a legal gray area and is most disputed. Both protection for tenants federations and the Contractingbranche expect from a decision by the BGH legal clarity.

Decisions by the Federal High Court

Four cases arrived 2005 and 2006 at ready for judgement ones of the supreme court.

With judgement from 6 April 2005 because of a case in Cologne the Federal High Court set the Contractingbranche into bright excitement, because in the opinion the judge those are frequently importantly higher costs of the Contracting in the comparison to the heat supply of the real estate in self-direction of the landlord or manager only then on the tenant apportionable, if this in rent-postpone in such a way one agreed upon (BGH, judgement from 6 April 2005, Az. VIII ZR 54/04). In the reason it concerns, how a so-called "inequitable double load" is handled legal debited to the tenant with capital outlays for the heating system.

With a second judgement in the summer 2005 the BGH with judgement from 1 June 2005 (Az interpreted. VIII ZR 84/04, WM 2005, P. 456) to a case in Dresden on that it aims at the solution at present rather on the side of the heating costs (heat costs). This means concretely that the BGH can see or see a reduction of the net cold rent around the proportionate capital outlays for the heating system momentarily not as (actually obvious) the solution would like.

The revision against a judgement of the LG Berlin from 30 August 2004, expected with tension, failed, because the landlord side withdrew the revision after a Vorabauskunft unfavorable for it by the BGH before beginning of negotiation.

Likewise with tension the judgement of the BGH was erwatet to for years a smoldering heating cost scandal in Bochum. It failed to 22.02.06 to favour of the tenants. The real estate enterprise Viterra AG belongs in the meantime since 2005 the German Annington, which was now subject. The law case was promoted by the tenant association Bochum, Hattingen and Umgegend as test case and granted favorably for the tenants. Would be however prematurely to be accepted, the Federal High Court now always became on with judgement from 6 April 2005, Az. VIII ZR 54/04 suggested and on 22 February 2006, AZ: VIII ZR 362/04 confirmed tenant-friendly position remain. The BGH of the innovative service Contracting seems fundamental to stand rather positively opposite. However the present legislation and legal situation are so clear that one could not decide simply in favor of the heat suppliers or landlords. A judge of the BGH energized therefore in the framework seinese of specialized lecture on the citizen of Berlin energy days in May 2006 to change the legal situation. However the Federal Department of Justice straight had understood to prevent the first attempts of the Contracting Lobbyisten in this direction in the interest of the tenants in the year 2005. It remains exciting.

View

Because of the multiplicity of different formulations of lease it is not to be counted however on the fact that the BGH can create here all-comprehensive clarity. In the iurisdiction the tendency appears that the landlord may change without agreement of the tenants of the Eigenversorung in such a way specified with heating warmth (heating obligation) to the (supply through third), but only with agreement of the tenant the full (usually around the capital outlays and Unternehmensgewinne higher) heating costs upon the tenant to shift may.

Such an agreement is to be therefore advised against to tenants if the landlord liked to lower the net cold rent (basic rent) not at the same time around that amount lowered, which was calculated so far by him for reproaching the heating system in the net cold rent and shifted by clearly into renting additional expenses. Only so an inequitable double load of the tenant can be avoided. This double load recognized the BGH. Logically the VIII senate of the BGH in its judgements excluded 2006 RKs it from the year in its judgements from the year 2006 an assumption (higher) of the Contracting Kostenbelastung also for the case that the tenant does not need to pay the modernization addition in accordance with "§559 BGB. Because this is limited on 11% of the total investment costs, while the additional charge can fail by capital outlays and profits for the entrepreneur in the context of the heating costs by Contracting more highly.

Related links

Cologne

• BGH, judgement from 6. 4. the 2005 - VIII ZR 54/04; LG Cologne

Dresden

• BGH from 1 June 2005, Az. VIII ZR 84/04 (guiding principles)

Ruhr district

• Knut Unger: '' Large success in the controversy over the The BGH rejects revision of the Viterra. '' In: Tenant forum Ruhr, 20 April 2006
• R. Stuecker: '' After BGH judgement: Annington is to refund overpayments. '' In: Tenant forum Ruhr, 15. May 2006

Articles in category "Warmth Contracting"

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