Within the framework of the residential housing industry, we advise both private and public housing associations, as well as condominium owners associations and property developers in all energy-related matters. This includes the supply of heat, hot water and electricity by the landlord, including contracting, commercial heat supply and technical management of energy systems. Our advice is given to landlords as well as to the providers of energy-related services.

Consulting often begins at an early phase of a project, in which all preparatory background information for a decision by the executive board and supervisory board are brought together and the contractual construction for implementation is presented. Based on the analysis of the previous heat supply, risks and opportunities from other solutions are presented and, in particular, the operating cost law on the apportionability of corresponding costs is examined. In addition to the possibility of awarding the heat generation to a contractor or heat supplier, we also examine joint venture options or the establishment of a subsidiary energy company as well as the assumption of technical management of the heating systems. District heating is also taken into account, whereby different solutions to reduce costs are shown, taking into account the constraints regarding connections and use.

Following a decision by the executive board or the management on the implementation of a proposed measure, appropriate contracts are drawn up on our side, and we accompany you in negotiations with the contractual partners and communication with tenant protection associations. In this implementation phase especially, the operating cost law, the economic efficiency requirements under the operating cost law and the apportionment of costs to the tenant or the proper apportionment of costs are included in the preparation of contracts and advice. In the case of a public housing company, it is imperative to carry out an examination of the necessary compliance with, and implementation of, an award procedure both for the founding of an energy company and for deciding about a joint venture partner. In this respect, any cooperation agreements are also drawn up and coordinated between the future partners.

With the commencement of the heat supply or the technical management, consultation changes into a selective consultation on individual questions during the implementation. For example, we draw up general contractor contracts for heating systems, advise on the takeover of further energy-related services (metering and billing), devise the initial approaches to electro mobility  and more recently we have implemented tenant electricity concepts.

We are happy to support you in the implementation of comparable concepts and can help you to implement the partially divergent and regularly revised legal situation for your company. We are also at your disposal for an examination of partial aspects or individual contracts in the areas of construction law, tenancy law and energy law.


| Heat supply

BGH on the extent of the proof of the operating cost accounting

In a decision dated 9. 12. 2020, the BGH granted a tenant a temporary right of retention under Section 242 BGB for operating costs claimed by the landlord. Insofar and as long as the landlord does not allow the tenant to inspect the accounting documents contrary to § 259 para. 1 BGB, to which in addition to the invoices also the payment receipts are to be counted, the tenant can just not check the activity of the landlord. This also applies irrespective of whether the landlord accounts according to the outflow principle or according to the performance principle or whether he uses one or the other accounting method for the different types of operating costs, according to the Federal Court of Justice. An interest going beyond the general interest of the tenant in the review of the #Operating costs statement is not required here. (BGH, Dec. of 9.12.2020 - Az.: VIII ZR 118/19)
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| Heat supply

BGH about the right to amend price adjustment clauses in district heating contracts

On 23rd of April, the BGH heard a review of the ruling of the OLG Frankfurt am Main of 21st March 2019. The main hearing will take place on 3rd March 2019. OLG Frankfurt had affirmed that district heating utilities had infringed the UWG because they had informed their customers in a customer’s letter of a change in the price adjustment clauses. In the opinion of OLG Frankfurt a. M. was not allowed to change unilaterally the price adjustment clauses on the basis of AVBFernwärmeV and the customer’s letter was therefore misleading. The BGH annulled this ruling of the OLG Frankfurt and ruled that there was no infringement of the UWG. The district heating provider did not mislead its customers by giving false facts, but merely expressed its legal view, which was admissible. However, the BGH did not clarify the actual question of whether district heating utilities are entitled to unilaterally change their price adjustment clauses by means of public announcement.
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Your contact person

Dr. Florian Brahms
Phone +49 (0)30 20 188 328
Email brahms@brahms-kollegen.de

Florian Brahms

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