What "apportionable operating costs" means in a commercial lease
As a commercial tenant, you usually pay ancillary costs (Nebenkosten) on top of the base rent – but not every item your landlord bills is actually permissible. The key difference from residential tenancy: for commercial premises there is no statutory automatism. In principle, only what your lease expressly names is apportionable (umlagefähig). 1,5
Under the law, operating costs (Betriebskosten) are the costs that the owner incurs on an ongoing basis through ownership or through the intended use of the building (§ 1 Abs. 1 BetrKV). The key word is "ongoing": one-off expenses are not operating costs. Expressly excluded under § 1 Abs. 2 BetrKV are management costs (Verwaltungskosten) and maintenance/repair costs (Instandhaltungs-/Instandsetzungskosten) – a point that plays a special role in commercial leases. 1
The § 2 BetrKV catalogue: the 17 items
For residential space, the § 2 BetrKV catalogue applies directly. For your commercial tenancy it does not apply directly, but only as an aid to interpretation (Auslegungshilfe): if your contract uses the term "operating costs" without further explanation, then under BGH case law it refers to the cost types listed in the catalogue. The catalogue comprises these 17 items: 4
- Ongoing public charges on the property (above all property tax, Grundsteuer)
- Water supply
- Drainage (sewage/sewers)
- Operation of the central heating system
- Central hot-water supply
- Combined heating and hot-water systems
- Operation of the passenger or goods lift
- Street cleaning and refuse removal
- Building cleaning and pest control
- Garden maintenance
- Lighting of communal areas
- Chimney sweeping
- Property and liability insurance
- Caretaker (Hauswart)
- Operation of the communal antenna system / broadband/fibre-optic network
- Operation of laundry facilities
- Other operating costs (catch-all item) 2
No. 17 "other operating costs": only if specifically named
Item 17 is not a general clause. Costs that do not fall under numbers 1–16 (e.g. servicing of security, air-conditioning, fire-protection or sprinkler systems, smoke detectors, gutter cleaning) are only apportionable if they are specifically and individually named in the lease. A blanket wording such as "and other operating costs" is not enough – you may challenge such items. 4
Commercial specific 1: management costs are apportionable
For residential space, management costs are in principle not apportionable under § 1 Abs. 2 BetrKV. In commercial leases it is different: the BGH has ruled that a standard-form clause requiring the tenant to bear the costs of commercial and technical property management is permissible – even without a monetary cap (BGH, judgment of 09.12.2009 – XII ZR 109/08). The prerequisite remains: the apportionment must be expressly agreed in the contract. Without a corresponding clause, you do not have to pay management costs. 5
Commercial specific 2: maintenance only with a cost cap
Also unlike residential space, in commercial leases maintenance and repair costs can in principle be apportioned to you. But here the BGH draws a clear line in your favour: a standard-form clause that imposes the upkeep burden for shared areas and facilities on you without any monetary limit is invalid – it breaches § 307 Abs. 1, 2 BGB (BGH, judgment of 10.09.2014 – XII ZR 56/11). In that case a cost cap is missing. The reason: without a cap, you would be saddled with incalculable costs for damage that lies outside your sphere of influence. So check whether such a clause contains a percentage or absolute upper limit. 6
| Cost type | Apportionable (residential) | Commercial specific |
|---|---|---|
| § 2 Nr. 1–16 BetrKV (property tax, water, heating, lift, refuse, cleaning, insurance, caretaker …) | yes, if apportionment is agreed | only if the contract names them; catalogue as an aid to interpretation |
| § 2 Nr. 17 "other operating costs" | yes, but only if individually named | only if specifically designated in the contract – no blanket clause |
| Management costs | no (§ 1 Abs. 2 BetrKV) | yes, by an express clause, even without a cap |
| Maintenance/repair | no (§ 1 Abs. 2 BetrKV) | yes, but only with a cost cap; invalid without a cap |
| Management + maintenance without a contract clause | – | not apportionable |
BetrKV cost types – residential vs. commercial (for orientation, not a substitute for reviewing your contract). 1,2,4,5,6
Your checkpoints as a commercial tenant
When reviewing your statement, the rule is: apportionable is only what (1) arises on an ongoing basis (§ 1 BetrKV), (2) is named in the lease, and (3) in the case of maintenance is capped by an upper limit. Also note the billing deadline: for residential space the landlord must render the statement within 12 months of the end of the accounting period (§ 556 Abs. 3 BGB). This deadline does not automatically apply to commercial leases – there it depends on the contractual arrangement. Check your contract. 1,3
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This article is general information and does not replace individual legal advice.
Frequently asked questions
Does the § 2 BetrKV catalogue also apply to my commercial premises?
Not directly. § 2 BetrKV applies directly only to residential space. In a commercial lease it serves as an aid to interpretation: if your contract uses the term "operating costs" without explanation, it refers to the catalogue items. But only what the contract provides for is apportionable.4
May my landlord pass management costs on to me?
In a commercial lease, yes – unlike residential. The BGH has held the standard-form apportionment of management costs to be permissible, even without a maximum amount (XII ZR 109/08). The prerequisite is an express clause; without one you do not have to pay.5
Do I have to bear maintenance costs?
In principle these can be apportioned in a commercial lease, but only with a cost cap. A standard-form clause without a monetary limit for shared areas is invalid (BGH XII ZR 56/11, § 307 BGB). Check whether your contract provides for a cap.6
What are “other operating costs” and may I challenge them?
This is the catch-all item No. 17 of the catalogue (e.g. servicing of technical installations). It is only apportionable if the individual cost types are specifically named in the contract. A purely blanket wording is not enough – you can reject such items.4
Sources
- 1Section 1 BetrKV – operating costs (definition; exclusion of management & maintenance costs) — Federal Ministry of Justice (gesetze-im-internet.de), accessed 2026-07-06
- 2Section 2 BetrKV – schedule of operating costs (catalogue No. 1–17) — Federal Ministry of Justice (gesetze-im-internet.de), accessed 2026-07-06
- 3Section 556 BGB – agreements on operating costs (billing deadline, para. 3) — Federal Ministry of Justice (gesetze-im-internet.de), accessed 2026-07-06
- 4Apportionment of “all operating costs” in a commercial lease sufficiently specific — Haufe (BGH XII ZR 120/18 (08.04.2020)), accessed 2026-07-06
- 5BGH on the validity of apportioning management costs in standard-form commercial leases — Strunz · Alter Rechtsanwälte (BGH XII ZR 109/08 (09.12.2009)), accessed 2026-07-06
- 6Standard-form apportionment of maintenance costs for shared areas without a cap is invalid — Vermieterverein e.V. (BGH XII ZR 56/11 (10.09.2014)), accessed 2026-07-06
Co-founder, Boomerent
Co-founder of Boomerent, PhD (University of Tor Vergata, Rome) in artificial intelligence and machine learning. Over 10 years of experience in automation, AI and software, across business and research — at TH Wildau and as an AI consultant at adesso and Sixt; he has also founded startups such as notivo and markencheck.ai. At Boomerent he builds the AI that extracts and analyzes contracts, costs, and deadlines. Writes about what that analysis surfaces in real leases — service charges, clauses, and deadlines.