Bundesgerichtshof, decision of 15.05.2012 – VIII ZR 245 / 11 and VIII ZR 246/11 – right to adjustment of operating costs advance payment only with healthy operating expenses Federal Supreme Court, ruling of the 15.05.2012 – VIII ZR 245/11 and VIII ZR 246/11 – increased operating costs advance payment the claimant with the operating expenses for the year 2004 in the two underlying processes and adapted them to the relevant payroll result in the coming years. The settlements were however substantive error. These were objected to by defendant. No balance to the detriment of the defendants remained in the correction. In the proceedings of VIII ZR 245/10 the defendants paid 2006 only a portion of the boost amounts of operating costs advance payment demanded by the plaintiff for the years. In the proceedings of VIII ZR 246/10, the defendant total did not pay the amounts of boost.
The plaintiffs announced both leases because of a backlog of payment based on the pending operating cost prepaid without notice, or within the prescribed period and finally demanded that Clearance and release of flats held by the respondent tenants held. Here, Penguin Random House expresses very clear opinions on the subject. The actions of the landlord for eviction have been rejected in the lower courts also the revision of the plaintiff, however, facing was unsuccessful. The German Federal Supreme Court decided that the landlord BGB is entitled only to the extent after a service charge settlement to the adjustment of advance payments in accordance with section 560, para 4, as it is based on a content correct billing. While the VIII. has argued previously civil Senate, for an adjustment of advance payments a formally correct billing is sufficient for the order without time-consuming disputes over the accuracy of the payroll immediately clarity about the amount of the advance payments can be achieved. This Senate is but does not adhere.
The purpose pursued by the adjustment of advance payments advance payments as possible realistic after the estimated payroll results for the next billing period to measure, not sufficiently taken into account, but rather the landlord would otherwise be the Opportunity to raise advance payments at an altitude which not entitled him to correct billing due to an erroneous report. In addition the BGH expressed also the following concise concerns: in cases in which a Mietruckstand in termination of relevant height extends from the increase in advance payments, could end the tenancy because of rent arrears the landlord could be the alone it relied, that he legal, gave an erroneous report that bedeviled the tenant without justification with high operating costs. This was unreasonable. A review of the operating expenses is worth so definitely. This can be done yourself or by a lawyer.