Burden of proof regarding rental ancillary costs

The principle of cost-effectiveness regarding ancillary rental costs is often a sensitive issue for both tenants and landlords. Here are some guidelines on when this principle is violated and who bears the burden of proof.

A tenant is only willing to pay for ancillary rental costs that are necessary and reasonable. On the other hand, a landlord is obligated to act economically regarding the costs incurred for the building. They may only pass on to the tenant those costs that are justified after a conscientious consideration of all circumstances and in accordance with proper business management. The principle of cost-effectiveness may be violated if operating costs are too high or have not been used sensibly. This includes incurring high costs that are not justified by an objective reason, as well as the purchase of unnecessary equipment, for example for the communal garden. It is also clear that costs arising from the landlord’s negligence, such as late fees or a failure to provide comparative quotes, do not have to be paid by the tenants.

Burden of proof lies with the tenant

However, the tenant must provide evidence of missing comparisons or excessive expenditures. The tenant must prove that the principle of economic efficiency has been violated. Merely pointing out that costs exceed the usual amounts, as shown in the operating cost index, is not sufficient for this purpose. Even if the costs exceed the average, the landlord has the opportunity to prove that they nevertheless acted economically and reasonably. To do so, they must present objective reasons that justify the higher price.

Outlook: It is also important to correctly distinguish between apportionable operating costs and non-apportionable maintenance costs. A rule of thumb is: Costs that are incurred on an ongoing basis are operating costs; one-time maintenance costs are the landlord’s responsibility.