Energy performance certificate: who pays — landlord or tenant?

You are letting to a new tenant and wonder whether the energy performance certificate will stay on your bill — or you are a tenant and have found the item in your service charge statement. This article is written for both sides of a residential tenancy; the answer is the same.

First, whom the costs fall on in which situation. Then the contentious question: why passing the cost on is ruled out — and why the usual reasoning for this is the wrong one. Finally, what a tenant can do if the certificate does appear in the statement.

#Who pays for the energy performance certificate — and why is it not stated anywhere in the Act?

The energy performance certificate (Energieausweis) is paid for by whoever has the duty to have it issued: the owner for a new building, the seller on a sale, the landlord on a letting. The Building Modernisation Act (Gebäudemodernisierungsgesetz, GModG) contains no separate cost rule — it allocates duties, and the bill follows them.

This can be read in § 80 GModG.1 Subsection 1 sentence 2 names the owner for a new building; subsection 3 is worded impersonally — “an energy performance certificate is to be issued” — and only subsections 4 and 5 name those who act: seller, landlord, lessor, leasing provider and, on an equal footing, the estate agent. Anyone who has to present and hand over the certificate must have it beforehand. That answers the cost question without any section using the word “costs”.

The rest of the chain of duties is set out in energy performance certificate on sale and letting; here it is only about the bill.

Two rows in detail. For an owner-occupied flat the certificate covers the building, never the individual flat (§ 79 (2) GModG);2 if the association obtains it, each owner bears the costs according to their share (§ 16 (2) of the Condominium Act, WEG).8 With inheritance, gift and compulsory auction no duty arises at all11 — acquiring ownership by sovereign act is not a sale.9

#May the landlord pass the costs on through the service charges?

No. The reasoning is more interesting, because the familiar one is wrong. “The energy performance certificate is not in the catalogue of the Operating Costs Ordinance” — this sentence appears on almost every page on the subject and does not hold. § 2 of the Operating Costs Ordinance (Betriebskostenverordnung, BetrKV) nowhere describes itself as exhaustive, and number 17 is a catch-all provision: “other operating costs; these include operating costs within the meaning of § 1 that are not covered by numbers 1 to 16.”4 A catalogue with an open last line excludes nothing.

The answer lies one step earlier, in the definition itself.

So there are three conditions, and all must be met. The energy performance certificate already fails the first: it arises from a one-off occasion and recurs after ten years at the earliest (§ 79 (3) GModG). It also fails the second, because obtaining it is administration. Whether it would fit into number 17 no longer even comes up.

That is how the associations reason. The Berliner Mieterverein (Berlin tenants’ association) writes that the costs are “not to be passed on to the rent, not even as other operating costs, because the feature of arising on an ongoing basis, which is necessary for passing on operating costs, is already lacking”.11 The consumer advice centre (Verbraucherzentrale) says the same more briefly.10 What is notable is who does not contradict this: not even Haus & Grund, the homeowners’ association.

#What to do if the energy performance certificate appears in your service charge statement?

It rarely appears under its own name. More common are collective items such as “energy consultancy”, “expert fees” or “other operating costs” — in a statement with two dozen lines this does not stand out. Taking action against it is simple but subject to a deadline.

#Can something else be agreed — in the tenancy agreement or with the estate agent?

Not in a residential tenancy agreement: § 556 (5) BGB declares any agreement invalid that deviates from the operating cost rules to the tenant’s detriment.5 How strict this restriction is, the Federal Court of Justice (Bundesgerichtshof) shows in a related case — a separately stated flat-rate administration charge in a standard-form tenancy agreement is invalid (judgment of 19 December 2018, VIII ZR 254/17).13 The judgment still cites subsection 4; the provision has since moved on by one number.

In a commercial tenancy it is different: § 578 (2) BGB lists which residential provisions apply to premises that are not residential — § 556 BGB is not among them.6 There, freedom of contract prevails, and passing the cost on can be agreed if it is described with sufficient precision.

And the estate agent? Under § 80 GModG they are themselves obliged to present the certificate, not merely your messenger.1 They are only entitled to reimbursement of expenses if this has been agreed — so says § 652 (2) BGB, even if no contract comes about.7 Without such an agreement, obtaining the certificate is deemed to be covered by the commission.

As a landlord you can in principle deduct the expense for tax purposes — details in Is the energy performance certificate tax-deductible?. What it costs depends on the certificate type; online from 69.90 €, the breakdown in what an energy performance certificate costs.

#Frequently asked questions on the cost question

#Conclusion: the bill follows the duty

Whoever has to present the energy performance certificate pays for it — owner, seller, landlord, and for an owner-occupied flat the association. Passing it on does not fail because the certificate is missing from a list, but because of the definition of operating costs: it does not arise on an ongoing basis, and it is administration. Anyone who still finds it in a statement has twelve months from receipt to object in writing.