Can the costs for an emergency janitor service be passed on to the tenant?

Real estate can occasionally be affected by emergencies such as a burst pipe, clogged drain, or power outage. In such cases, an effective and cost-conscious emergency janitorial service is required. Many landlords ask themselves whether they can pass on the costs of the unexpected janitorial intervention to the tenant. The Federal Court of Justice has ruled that an emergency flat rate for janitors does not belong to the apportionable operating costs, but rather to the administrative costs. Consequently, it must be paid by the landlord.

Initial situation: Landlord passes emergency service flat rate on to the tenant

In the utility bill, the landlady of an apartment demands a so-called emergency service flat rate from her tenants for the janitor, who resolves unexpected malfunctions outside of regular business hours. However, the tenants are convinced that this flat rate is not eligible for apportionment and refuse to pay this item. BGH rules: Costs for on-call duty may not be passed on to the tenant.
The costs for the emergency service flat rate are allocated to the administrative costs and therefore must be borne by the landlord. Passing on the costs to the tenant is consequently not possible.

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Costs for regular caretaker services are apportionable

The typical costs that a janitor regularly incurs in an apartment building are part of the operating costs and may therefore be passed on to the tenant. This includes the costs for maintenance, care, and cleaning work and other typical janitor duties that ensure safety and order on the property. These tasks are carried out at specific time intervals and are characterized by regularity and routine. The emergency service flat rate serves to record malfunctions and is associated with the commissioning of necessary repairs, which is typical of administrative activity. Therefore, emergency service flat rates may not be passed on to the tenant as operating costs.

However, the costs for an on-call service for extractor hoods may be passed on to the tenant. This is explicitly stipulated in the Ordinance on Operating Costs.

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