How Much Deposit Can a Landlord Withhold for Nebenkosten?

That a landlord is allowed to withhold part of the deposit for outstanding Nebenkosten is settled by the highest court. What's less clear to most tenants is the question that actually matters: how much, exactly?

There is no fixed percentage

Contrary to what many assume, neither the BGB nor case law sets a fixed percentage or multiplier that a landlord may automatically withhold for pending Nebenkosten. In its ruling of 18 January 2006 (VIII ZR 71/05), the Federal Court of Justice (BGH) speaks only of a "reasonable portion" of the deposit that the landlord may withhold until the deadline for the Nebenkosten statement, and only if a back-payment is to be expected. How large that portion is in any individual case is a question of the actual circumstances, not a fixed formula.

Hand holding a set of keys in front of an open apartment door (Photo by Jakub Żerdzicki on Unsplash)

What the amount is based on

In practice, landlords usually look at the top-up payment or refund from previous billing years. If there was regularly a top-up of, say, 150 euros in the past, withholding roughly that amount is easier to justify than withholding several times that. A flat withholding of the entire deposit, justified only by pointing to a Nebenkosten statement that's still pending, isn't reasonable and generally isn't lawful.

A worked example: your deposit was €2,400, and your last three Nebenkosten statements ended in back-payments of €90, €150 and €120. A withholding of roughly €150, the highest recent back-payment, is easy to justify, so you should get about €2,250 back now. Keeping €600 or the whole deposit would be hard to justify on this history. And if your recent statements ended in refunds rather than back-payments, there's little basis for withholding anything, because the BGH only allows it when a back-payment is to be expected.

What tenants can do if the amount looks too high

If you suspect significantly more has been withheld than could realistically be owed in Nebenkosten, ask the landlord to justify the amount and point to the statements from previous years. If the withheld amount can't be plausibly derived from the actual cost history, you can reclaim the excess. A short letter or email in your own words is usually the first step. Things you can include:

The address of the flat and the date you moved out
How much deposit you paid and how much the landlord has withheld
What your Nebenkosten statements from previous years ended in, ideally with copies attached
Why you think the withheld amount is higher than the back-payment you can realistically expect
The amount you're asking to have paid back, your bank details and a reasonable deadline

This is a starting point, not a complete list. Other things can matter in your case, for example what your rental contract says, whether the landlord is also claiming for damage or unpaid rent, or how your Nebenkosten are billed. If a lot of money is at stake or the landlord disagrees, get advice from a tenants' association (Mieterverein) or a lawyer before you take it further.

Keep a copy, and send it in a way you can prove, such as by email with a read receipt or by registered letter.

For an overview of tenant rights on a disputed withholding, see our related guide.

Person writing notes in a notebook next to a laptop and coloured markers (Photo by Flipsnack on Unsplash)

How this interacts with the twelve-month deadline

The Nebenkosten withholding is time-limited regardless: once the twelve-month deadline under Section 556(3) BGB for the Nebenkosten statement has passed, the basis for withholding disappears entirely, no matter how much was originally withheld. For more on that deadline and what happens once it passes, see our deposit hold duration guide, and for the other grounds a landlord can withhold on, our deposit deduction rights guide.

How deposit refunds under Section 551 BGB work in general is covered in a separate article.

Conclusion

There's no fixed percentage a landlord may withhold from the deposit for outstanding Nebenkosten. What matters is a reasonable amount based on the actual cost history, which must be paid out at the latest once the twelve-month billing deadline expires.

For more, see our deposit hold duration guide and our landlord deposit rights overview.