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Empty flats in the building: who pays their service charges?
The landlord bears the vacancy share. How the total area on your statement reveals whether costs were shifted onto you.
If flats in your building stand empty, costs still arise there: property tax, insurance, frost protection heating, the lift, cleaning. Who bears them is a very concrete question for your statement — and it has been settled by the Federal Court of Justice. This guide explains the rule, how to spot a shift, and how to object. It covers residential tenancies in Germany and is not individual legal advice.
The principle
The landlord carries the letting risk and therefore the vacancy risk. The Federal Court of Justice held that where cold operating costs are allocated by the ratio of the let flat's living area to the total living area of the building, the landlord must generally bear the operating costs attributable to vacant units — and that this also applies to consumption-dependent costs that are billed by area for want of individual meter readings (BGH, judgment of 31 May 2006 – VIII ZR 159/05).
Legally this follows from the agreed distribution standard: if allocation is by share of the total area, the share attributable to empty area stays with the owner.
What a shift looks like
The shift does not appear as its own line. It happens through the denominator. Instead of the building's actual total living area, only the sum of the let areas is used as the reference figure. The same total amount is then spread over fewer square metres, and every remaining household pays more.
An example: a building has 1,000 m², of which 200 m² are empty. The property tax is €4,000. The correct figure is €4 per square metre; for an 80 m² flat that is €320. If only 800 m² are used, the figure becomes €5 per square metre and therefore €400 — €80 too much for a single item.
How to find it
Look for the total area or the total units stated on the statement. Compare it with what you know about the building: the number of flats, their approximate sizes, the number of doorbells and letterboxes. Also compare the total area with previous years. If it shrinks without any building work, vacancy is the most likely explanation.
Then ask specifically: "What is the total living area of the billing unit, and does the reference figure used in the statement correspond to that area? If not, please explain."
Heating is a special case
For heating and hot water the Heating Costs Ordinance applies. Base costs are allocated by area, consumption costs by measurement. An empty flat generates base costs but little or no consumption. The base costs of the empty flat are the landlord's. If frost-protection heating is used there in winter, that consumption is attributable to the landlord too.
Check in the heating statement whether all units are listed, including the empty ones. If they are missing from the schedule, the allocation cannot be followed.
Occupancy keys and vacancy
Where allocation is by number of occupants, vacancy works differently. Nobody lives in an empty flat, so it drops out of the count automatically. That is exactly the problem: costs that arise regardless of occupancy — property tax, insurance, lift servicing — are then spread entirely over the remaining households, although they also arise for the empty area.
For that reason, occupancy-independent cost types are normally allocated by area rather than by persons. If your statement allocates such a cost type by persons while flats stand empty, it is worth asking about the agreed method and about the treatment of the vacancy share.
What the landlord can do instead
The case law does not rule out an adjustment in exceptional cases. The Federal Court of Justice pointed to the possibility of examining an adjustment of the contractually agreed area standard under the rules on frustration of contract in section 313 BGB where vacancy is substantial. That is a high threshold, not a rule.
A change of the allocation standard for the future under section 556a(2) BGB is also possible if its conditions are met. Such a change must be declared and does not operate retroactively.
Do not forget commercial areas
In mixed-use buildings two questions come together: vacancy and the commercial share. If a shop unit stands empty, the same rule applies as for flats. If it is let, a prior deduction may be required where the commercial use causes significantly higher costs.
Check whether the total area in the statement includes the commercial areas. If commercial areas count on the cost side but are missing on the area side, the same distortion arises as with vacancy.
Renovation and conversion
If a flat is renovated for a longer period and therefore not let, it is vacant for that time and the proportionate operating costs are the landlord's. The same applies to flats deliberately kept empty before a planned conversion into condominiums.
If you cannot prove the vacancy
You do not have to prove vacancy in order to ask a question. It is enough to compare the figures with earlier years and ask for the reference figure to be explained. Only if no answer comes, or the answer does not convince, does the question of evidence arise.
Everyday records help: photographs of the doorbell panel with blank labels, your own dated notes about empty flats, advertisements for flats in the building. They do not replace proof of the total area, but they make your enquiry concrete and harder to ignore.
How to object
Quantify the effect if you can. State the reference figure used, the total area you believe is correct, and the difference. Ask for a corrected statement. If you do not know the total area, first ask for it and for inspection of the area schedule; the right of inspection follows from section 556(4) BGB.
Objections must generally be notified within twelve months of receipt, section 556(3) BGB.
Read on and check your own bill
For how the distribution standard works, see allocation keys. For other excluded items, see property management fees, and for the next step, objecting to a statement.
A denominator that is too small shows up immediately when the arithmetic is redone: upload your statement to the free check.