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 |  Dennis Wiegard

Tenants can refuse to pay as long as landlords do not provide receipts (BGH)

Once a year, tenants receive the service charge statement from their landlords. All operating costs borne by landlords are invoiced, and these costs usually increase every year. However, it is often not clear to tenants whether the costs listed in the service charge statement have actually been incurred by the landlords. This is something that needs to be checked.

Inspection and control rights of tenants

Tenants have the right to inspect the original receipts. This arises from Section 259 of the German Civil Code (BGB). In its ruling of December 9, 2020 (BGH, Case No. VIII 118/19), the Federal Court of Justice has now clarified that the tenant's right to inspect the receipts of an operating costs statement also extends to the underlying payment receipts.

Decision of December 09, 2020 (BGH, Ref. VIII 118/19)

In the proceedings, the plaintiff landlord had demanded payment of EUR 1,262.35 plus interest from the tenant. It granted the defendant tenant access to the invoice receipts on which the statement was based; however, the landlord refused to allow the defendant to inspect the corresponding payment receipts.

The BGH has now rejected the landlady's appeal. The court of appeal (Berlin Regional Court) correctly dismissed the action as currently unfounded. As long as the tenant is not granted an inspection of receipts legitimately requested pursuant to Section 259 (1) BGB, the tenant is entitled to a (temporary) right to refuse performance based on Section 242 BGB (Senate judgments of February 7, 2018 - VII ZR 189/17; of April 10, 2019 - VIII ZR 250/17). The tenant's right of inspection refers not only to the invoices but also to the associated payment receipts.

"Because with the help of these receipts the tenant is enabled to check the justification of the amounts charged in each case. The demonstration of a special interest is not required, but rather the general interest of the tenant to control the activity of the landlord liable to pay the bill is sufficient" - RN 13

In any case, tenants should note that they cannot simply dispute the invoices and payment receipts in a possible lawsuit (with ignorance pursuant to Section 138 (4) of the German Code of Civil Procedure) if they have not previously asserted their right to inspect the receipts (Section 259 (1) of the German Civil Code). It should also be noted that any additional payments by tenants may only be temporarily refused. Tenants have a so-called temporary right to refuse performance. This right expires when landlords present the required documents - e.g. in the process. If this confirms the statement, the claim must be paid immediately.

Düsseldorf, 20.01.2021

Attorney Dennis Wiegard

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