Which operating costs a landlord may actually pass on to the tenant is clearly regulated by law – and yet the operating-costs statement is one of the most frequent points of dispute in a tenancy. The decisive sources are the catalogue of the operating-costs ordinance (BetrKV) and the requirements of § 556 BGB. This guide explains what is apportionable and what is not, how the allocation key works, which deadlines apply and what people argue about most often. For owners in Düsseldorf and throughout North Rhine-Westphalia who wish to bill correctly and on a legally sound basis – as general information, not as individual legal advice.
What are apportionable operating costs?
In tenancy law the term "ancillary costs" (Nebenkosten) is colloquial; the legally correct term is operating costs (Betriebskosten). Under § 556 (1) BGB and § 1 BetrKV, these are the recurring costs that the owner incurs through ownership of the property or through the intended use of the building, its installations and facilities.
The key word is "recurring": only regularly recurring costs are apportionable – for example for water, heating, refuse collection or insurance. One-off expenses such as a roof repair or the replacement of a defective heating system are not included.
A distinction is drawn between warm operating costs (heating and hot water, which under the heating-costs ordinance must largely be billed according to consumption) and cold operating costs (all other items such as property tax, water, refuse, building cleaning or insurance). Both groups are apportionable only if their allocation was validly agreed in the tenancy agreement.
The operating-costs catalogue of § 2 BetrKV at a glance
Which types of cost may be passed on at all is governed by the exhaustive catalogue of § 2 BetrKV. It comprises 17 items:
- Nr. 1 – Ongoing public charges: in particular property tax (Grundsteuer).
- Nr. 2 – Water supply: water consumption, basic charges, meter rental and calibration.
- Nr. 3 – Drainage: charges for waste water and rainwater, sewer use.
- Nr. 4 – Heating: operation of the central heating system, fuel, maintenance, chimney inspection.
- Nr. 5 – Hot water: operation of the central hot-water supply.
- Nr. 6 – Combined heating and hot-water systems.
- Nr. 7 – Lift: operating power, maintenance, inspection, cleaning.
- Nr. 8 – Street cleaning and refuse disposal.
- Nr. 9 – Building cleaning and pest control.
- Nr. 10 – Garden maintenance.
- Nr. 11 – Lighting of the communally used areas.
- Nr. 12 – Chimney sweeping.
- Nr. 13 – Property and liability insurance (building, glass, liability, natural-hazard damage).
- Nr. 14 – Caretaker (Hauswart), but excluding administrative and maintenance shares.
- Nr. 15 – Communal antenna or broadband/fibre-optic system.
- Nr. 16 – Facilities for laundry care.
- Nr. 17 – Other operating costs.
The catalogue is exhaustive: anything not listed here can, in principle, not be passed on via Nr. 1 to 16. A special rule has applied since 1 July 2024 to cable-TV fees via communal antennas – the former "ancillary-cost privilege" has been abolished, so ongoing programme fees may no longer be passed on as a flat charge.
The other operating costs (Nr. 17) – only if specifically named
Item Nr. 17 BetrKV – the "other operating costs" – is the only open catch-all item. It covers costs within the meaning of § 1 BetrKV that are not covered by numbers 1 to 16. Typical examples are the maintenance of smoke detectors, the inspection of electrical installations, the cleaning of gutters or the cost of a security service.
Important: this item is not a blank cheque. For "other operating costs" to be validly passed on, they must be individually and specifically named in the tenancy agreement. Under settled case law, a blanket clause such as "and other operating costs" is not sufficient to later bill any new items at will. Here too the rule applies: the costs must be recurring and must not be of an administrative or maintenance nature.
What is not apportionable: administration, maintenance and repairs
Just as important as the catalogue is the delimitation in § 1 (2) BetrKV. According to it, two large blocks of costs are expressly not operating costs and therefore not apportionable:
- Administrative costs: costs of property management, bookkeeping, rent collection, legal enforcement, owners' meetings, postage as well as account-keeping and bank charges. The landlord must bear these costs out of the net rent.
- Maintenance and repair: all costs that serve to preserve the proper condition or to remedy defects – that is, repairs, renewals and the replacement of worn parts.
The rule of thumb is: maintenance yes, repair no. The regular servicing of the heating or lift is apportionable; the repair or replacement of the system is not. For the caretaker, only the share for apportionable activities may be charged – the time spent on administration or minor repairs must be excluded. Maintenance reserves of a homeowners' association (WEG) also do not belong in the tenant's statement.
Prerequisite: the allocation must be agreed in the tenancy agreement
A widespread misconception is that operating costs are borne by the tenant "automatically". The opposite is correct: without an express agreement in the tenancy agreement, the tenant owes only the rent, and all operating costs are deemed to be settled by the rent. Only the contractual allocation agreement under § 556 (1) BGB transfers the operating costs to the tenant.
In practice, for the recurring items a reference to the "operating costs pursuant to § 2 BetrKV" or to the annex to the operating-costs ordinance is often sufficient; under case law this is regarded as sufficiently specific. For the "other operating costs" (Nr. 17), by contrast, a specific itemised listing is required.
Under § 556 (2) BGB, the costs may be agreed as an advance payment (with annual settlement) or as a flat rate (without settlement). In North Rhine-Westphalia – with sometimes high municipal charges, for example for property tax and waste water – the advance payment with annual final settlement is the practical norm, as it reflects actual consumption and changes in charges.
Allocation key and the principle of economy
The apportionable costs must be divided among the tenants according to a comprehensible allocation key (allocation standard). If nothing is regulated in the tenancy agreement, the statutory fallback standard under § 556a (1) BGB applies: allocation according to living space. Other standards may also be agreed by contract, for example according to number of persons, by residential units or according to recorded consumption.
For heating and hot water, the heating-costs ordinance (HeizkostenV) partly prescribes mandatory consumption-based allocation (generally 50 to 70 percent according to consumption). Once agreed, an allocation key is binding; the landlord may not change it unilaterally at will.
Above all stands the principle of economy under § 556 (3) sentence 1 BGB: when selecting service providers and contracts, the landlord must act in an economically reasonable manner. Objectively excessive or unnecessary costs – for example a significantly overpriced cleaning or caretaker contract without good reason – can be objected to and reduced by the tenant.
Deadlines under § 556 BGB and common disputes
Two central deadlines from § 556 (3) BGB apply to the statement:
- Settlement deadline (12 months): the landlord must deliver the statement at the latest by the end of the twelfth month after the end of the accounting period. For a period from 01.01. to 31.12.2025, the statement must therefore be available by 31.12.2026. If the landlord misses this deadline, he can no longer demand a back payment (§ 556 (3) sentence 3 BGB) – but a credit balance in favour of the tenant remains.
- Objection deadline (12 months): the tenant must notify objections to the statement at the latest by the end of the twelfth month after receipt (§ 556 (3) sentence 5 BGB). After that, objections are in principle excluded.
The most frequent points of dispute include: the inclusion of non-apportionable administrative or repair costs, missing or incorrect allocation keys, repair shares not deducted from caretaker and maintenance costs, unclear "other operating costs", late statements as well as refused inspection of supporting documents. Tenants have the right to inspect the underlying documents. In case of doubt, tenants can turn to their own tenants' association or lawyer.
