How Long a Landlord Can Hold Your Deposit for Nebenkosten

Following a ruling by the Federal Court of Justice (BGH) on 7 July 2021 (case VIII ZR 52/20), a landlord may withhold a reasonable portion of the security deposit until it's clear whether the utility cost statement (Nebenkostenabrechnung) will produce an additional claim. The BGH based this not on a general right of retention, but directly on the original deposit agreement: the deposit also secures outstanding utility claims while the statement is still pending.

What deadline applies to the utility statement?

Section 556(3) BGB governs this: the landlord must issue the utility cost statement no later than twelve months after the end of the billing period. If that deadline passes without a statement, the tenant can demand back the withheld advance payments without waiting for the outcome of any possible additional claim. The BGH clarified in 2021 that tenants don't need to pursue the cumbersome route of a staged claim (Stufenklage) in this situation, they can demand repayment directly.

How much can the landlord withhold?

It's important to distinguish between a reasonable portion of the deposit and the full amount. The landlord may not withhold the entire deposit indefinitely, only the amount that could realistically be covered by a possible additional utility claim. Any excess must be paid out promptly after move-out. Case law doesn't set a fixed formula for this reasonable portion; it's based on the size of previous years' additional payments or refunds.

Bottom line

A landlord may only withhold a reasonable part of the deposit pending the utility statement, not the full amount. If the twelve-month deadline under Section 556(3) BGB passes, you can demand the withheld amount back directly.

Frequently Asked Questions

Can a landlord withhold the entire deposit until the utility statement is issued?

No, only a reasonable portion covering a possible additional claim, not the entire deposit. This follows from the BGH ruling of 7 July 2021, case VIII ZR 52/20.

What happens if the landlord misses the twelve-month deadline?

The tenant can demand the withheld advance payments back directly, without waiting for the outcome of a possible additional claim.

Do I need to file a staged claim (Stufenklage) to get my money back?

No. The BGH clarified in 2021 that tenants can demand repayment directly once the deadline has passed.

Is there a fixed formula for the "reasonable portion"?

No, case law looks at the size of previous years' additional payments or refunds.

For how the deposit itself is legally capped, see Guarantor, Bank Statements, or Deposit: What Actually Replaces SCHUFA?. For more on your rights during move-out, see Tenant Obligations for Apartment Viewings in Germany. For your next apartment, use Waitly.