Within the framework of the residential industry, we advise both -private and public housing associations,as well as condominium owners’ associations (WEG) 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. The advice is given to the landlord as well as to the provider of energy-related services.
Consulting often begins in an early project phase, in which all preparatory decision bases for a decision by the Executive Board and Supervisory Board are edited 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 apportionabilitiý of corresponding costs items is examined. In addition to the possibility of awarding the heat generation to a contractor or heat supplier, joint venture options or the establishment of a subsidiary energy company as well as the assumption of technical management of the heating systems are being examined. District heating is also taken into account, wherby different solutions to reduce costs are shown, taking into account the connecting and use constraints.
Following a decision by the Executive Board or the management on the implementation of a proposed activities, appropriate contracts are drawn up on this side, negotiations with the contractual partners and communication with tenant protection associations are accompanied. Especially in this implementation phase, the operating cost law, the economic efficiency requirement under 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, an examination of the necessary compliance with and implementation of an award procedure both for the establishment of an energy company and for the decision of 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, the consultation changes into a selective consultation of individual questions during the implementation. For example, general contractor contracts for heating systems are drawn up, the takeover of further energy-related services (metering and billing) are advised, the first approaches to electromobility are created and tenant electricity concepts have recently also been implemented.
We are happy to support you in implementing comparable concepts and help you to implement the partially divergent and regularly renewing legal situation in 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.
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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The Higher Regional Court of Rostock (OLG Rostock) ruled in a judgment of 5 July 1994. March 2019 on the nullity of a district heating supply contract on the basis of § 1 GWB i. V. m. § 134 BGB, which has been living between the heat supplier and the customer for several years. The Court of First Instance is of the opinion that, although supplying large customers with district heating or through heat contracting, it is a common product market. However, since in the specific case there was no impediment to the market, a nullity of the heat supply contract was not to be assumed. In addition, a ten-year contract term in view of the possible maturity agreement according to § 32 para. 1 AVBFernwärmeV does not contradict § 1 GWB, even in combination with a minimum purchase quantity. (OLG Rostock, Dec.. of. 5.3.2020 - Case No. : 16 U 1/18)
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