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Gilt § 556 Abs. 3 BGB auch für befristete Mietverhältnisse nach § 549 Abs. 2 Nr. 1 BGB, wenn Vorauszahlungen für Betriebskosten vereinbart und Nachzahlungen laut Vertrag vorgesehen sind?
Does §556 Paragraph 3 of the German Civil Code also apply to fixed -term tenancy in accordance with Section 549 (2) No. 1 BGB if advance payments for operating costs are agreed and additional payments are provided according to the contract?
Yes, § 556 (3) of the German Civil Code (BGB) also applies to fixed-term rental agreements under § 549 (2) No. 1 BGB, if advance payments for operating costs (Betriebskosten) have been agreed upon and the contract provides for subsequent payments (i.e., additional charges).
Explanation:
1. Scope of § 556 BGB:
Section 556 BGB is part of the general tenancy law and governs the agreement and settlement of operating costs. It applies to residential leases, and its application is not limited to open-ended (unlimited) rental contracts.
2. Temporary use under § 549 (2) No. 1 BGB:
This provision concerns residential space rented for temporary use only, such as furnished apartments rented for short stays. While some protective provisions do not apply to such leases, § 556 BGB is not explicitly excluded.
3. Does § 556 (3) BGB apply despite § 549 (2)?
Yes. § 556 (3) BGB is not among the provisions excluded by § 549 (2). Therefore, if advance payments for operating costs are agreed, the landlord must comply with the legal obligation to issue an annual statement within the statutory deadline.
4. Consequence: Deadline for Cost Statement
Under § 556 (3) sentence 2 BGB, the landlord must provide the tenant with a settlement of the operating costs within 12 months of the end of the billing period. If the landlord fails to do so, they lose the right to demand any additional payment, unless the delay is not their fault.
Conclusion:
Yes, § 556 (3) BGB does apply to fixed-term rental agreements under § 549 (2) No. 1 BGB, as long as advance payments for operating costs are agreed and additional payments are contractually provided. The landlord must provide a timely annual statement, or they forfeit the right to claim any shortfalls.
Let me know if you’d like a court ruling or legal commentary to support this.