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01.03.2022 | KPMG Law Insights

Innovations in the Operating Costs Ordinance and the Heating Costs Ordinance

The Telecommunications Modernization Act (TKModG) came into force on December 1, 2021. Through this law – unnoticed by many – significant changes to tenancy law have been implemented via an adjustment to the Operating Costs Ordinance (BetrKV). The November 2021 amendment to the German Heating Cost Ordinance (Heizkostenverordnung – HeizkostenV) also has noteworthy implications, particularly for landlords and building owners.

Background

The basis for the amendment to the Telecommunications Act is the transposition into national law of a 2018 European Union (EU) directive on the European Electronic Communications Code. The aim here is to standardize the legal framework for telecommunications services throughout Europe. To take account of the objective in the national context, the previous Telecommunications Act has been completely revised and adapted with a view to innovation and digitization. In addition, the TKModG abolished the apportionability of TV cable charges. However, in order not to jeopardize the roll-out of optical fiber in Germany, a new type of operating expense, the optical fiber provision charge pursuant to § 2 No. 15 c) BetrKV, was introduced instead. However, the possibility of charging on the costs here is limited both in terms of time and amount. The Federal Ministry has published a question-and-answer catalog on the many individual questions in this context: 210615-q-and-a-about-optical-fiber-provisioning-fee.pdf (bmwi.de)

Further innovations in the BetrKV

However, the fiber provision charge is not the only newly introduced cost item: the apportionability has been extended to include calibration costs for cold and hot water meters. The costs of street cleaning and garbage collection were supplemented by the costs of operating garbage compressors, garbage chutes, garbage extraction systems, and garbage collection systems. These costs can now already be allocated if it has been agreed in the lease that the operating costs are to be borne by the tenant in accordance with the Operating Costs Ordinance. In the future, it will no longer be necessary to explicitly designate them as other operating costs pursuant to Section 2 No. 17 BetrKV. Likewise, in the future, the costs of calculating and allocating the volume of waste determined by waste collection systems will also be included in the operating costs. In addition to property and liability insurance, it is also possible to pass on insurance against natural hazards to the tenant.

Significance for Environmental Social Governance (ESG)

Fiber optic networks are the most climate-friendly transmission path for data to the building, but also within the building itself. Measuring devices for cold and hot water as well as for waste quantities not only enable building owners and landlords to collect the data basis necessary for more environmentally compatible building insurance, but also to encourage changes of use there by passing on the measurement results to the tenants.

Consequences for practice

Depending on the previous agreements in the lease agreements on the allocation of operating costs, supplements to the lease agreements may have to be concluded for an effective allocation of the new items as well. This always applies if no provision has been made for the apportionment of items in accordance with the BetrKV and/or for the apportionability of newly created operating costs, which is often the case in commercial leases. In the event that landlords have concluded concession agreements with telecommunications providers for the provision of network infrastructures with a term extending beyond June 30, 2024, these agreements in particular should also be reviewed to determine whether a special right of termination has been agreed.

Innovations in the Heating Costs Ordinance

The Amendment Ordinance on Heating Cost Billing, published in the Federal Law Gazette on November 30, 2021 and effective December 1, 2021, transposes obligations of the amended 2018 EU Energy Efficiency Directive into German law based on the 2020 Building Energy Act. With the amendment of the amendment on the settlement of heating costs, landlords or building owners are now subject to additional obligations. Among other things, the amended EU Energy Efficiency Directive imposes obligations for the remote readability of metering equipment for recording consumption, which is to be used for consumption information during the year and as billing information. Since the ordinance came into force, newly installed measuring devices such as meters and heat cost allocators must be capable of being read remotely, while ensuring data protection and data security in accordance with the state of the art.

Corresponding notification obligations have also been added: In the event that remote-readable meters have been installed, building owners have had an information and notification obligation since January 1, 2022, according to which they must now provide their tenants with monthly billing and consumption information. Any omissions may result in the tenants’ right to reduce the corresponding heating and hot water costs. The right set forth in § 12 para. (1) No. 1 of the Heating Costs Ordinance (HeizkostenV), the right of a tenant to reduce the bill by 15 percent if heat and hot water are not billed on the basis of consumption, shall remain unaffected.

Importance for ESG

In contrast to the previous annual notification of one’s own energy consumption, the amended ordinance on heating cost billing will in future also give tenants the opportunity to obtain consumption data during the year. At best, this information on energy consumption should have a direct influence on the heating behavior of tenants and thus contribute to a reduction in energy consumption. In addition to cost savings for tenants, positive effects on the energy balance of the building and thus the environment as a whole are also intended.

Consequences for practice

Heating costs are among the operating costs that can be allocated by landlords to tenants within the scope of § 2 No. 6 BKVO if there is a jointly used heating or hot water supply system. However, depending on the design, difficulties may arise with regard to the allocation of costs incurred in connection with the retrofitting and or replacement of measuring devices. In addition to the obligation to remotely read new installations, it is above all the obligation now contained in § 5 para. (3) and para. (4) HeizkostenV, according to which old equipment that cannot be read remotely must meet the new requirements by December 31, 2026 or 2031 through retrofitting or replacement.

Always well advised

We will be happy to provide you with further information or answer any queries you may have, and will of course support you in all matters arising from the amendments to the Operating Costs and Heating Costs Ordinance in specific individual cases, including possible amendments to the rental agreement.

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