Garden maintenance in court

The removal of a decaying birch tree in the garden of an apartment building led to a legal dispute. The landlord wanted to pass on the costs of felling the dead tree to the tenants as part of the operating expenses. One of the tenants refused to pay, arguing that it wasn't a regular expense. The landlord persisted and ultimately filed a lawsuit. Who is right?

The Berlin Regional Court ruled in favor of the tenant: Since felling the tree was not one of the ongoing, recurring expenses, which can also include gardening work, the tree felling costs could not be passed on to the tenant as operating costs. Rather, the removal of the birch tree constituted a one-time measure during the term of the tenancy.

This case is helpful for owners and tenants insofar as it contributes to clarifying the fundamental question of which operating costs may generally be passed on to the tenants and in which cases the obligation to pay lies with the landlord.

Operating costs are incurred on an ongoing basis.

The German Operating Costs Ordinance (BetrKV) defines operating costs as expenses that "are incurred by the owner […] through the intended use of the building on an ongoing basis." This generally means that the costs are incurred regularly, which certainly applies to classic operating costs such as property tax, water, building insurance, and garbage collection fees.

However, regular operating costs that arise at longer intervals, such as replacing water meters or cleaning the oil tank, are also chargeable to tenants. The longest multi-year cycle approved by the courts to date was seven years.

Unforeseen costs.

Things become more complicated with exceptions to the rule, namely irregular operating costs that arise unexpectedly at intervals of several years. For example, while expenses for garden maintenance are generally the tenant's responsibility, this principle does not apply to one-off costs such as felling a rotten tree – even if this measure contributes to the tenants' safety.

Even with regular garden maintenance, it is often disputed which costs can be passed on to tenants. This is particularly true when the work involves not routine tasks like hedge trimming, but rather expenses for unique jobs that only occur regularly in their entirety. In some legal disputes, numerous aspects of garden maintenance have been classified as one-off expenses, since planting a tree or plant can only be done once. It is therefore no wonder that garden maintenance has been the subject of many court cases. (Berlin Regional Court, Judgment of April 13, 2018, Case No. 63 S 217/17)

Sources: immonewsfeed.de, dejure.org, experten.de, immobilien-tipps.wunderagent.de, kostenloseurteile.de, assekuranz-info-portal.de