How to correctly allocate the costs of Legionella testing

Recommendation on the allocation of costs for drinking water testing

Regular testing for Legionella is mandatory for many property owners and managers. However, the question repeatedly arises: How should the costs of Legionella testing be correctly allocated in the operating cost statement?

Regular Legionella testing as part of the hot water supply

According to the prevailing view today, the costs of recurring Legionella testing are considered part of the hot water supply costs. These recurring tests serve to monitor the central hot water system and ensure its operational safety. Therefore, they are generally classified as hot water costs today.

The legal basis can be found in Section 8 Paragraph 2 of the Heating Costs Ordinance (HKVO) in conjunction with Section 2 No. 5a of the Operating Costs Ordinance (BetrKV) . The costs of hot water supply that can be passed on to tenants include, among other things, the costs of "monitoring the system" and "testing its operational safety".

Since Legionella bacteria primarily multiply in hot water systems and sampling takes place directly at the hot water supply system, the test directly serves the operational safety of the hot water system.

Case law confirms the classification

Case law also supports this view. The Baden-Baden District Court (Case No. 19 C 243/14), for example, explicitly confirmed that costs related to hot water preparation are to be considered as such, provided they serve the operation of the central heating system. The Federal Court of Justice (BGH) (e.g., judgment of May 6, 2015, Case No. VIII ZR 161/14) also generally emphasized the landlord's obligation to carry out appropriate inspections. Regular inspections serve to protect the health of the residents and ensure the safe operation of the system.

However, the legal situation has not been entirely uniform historically. Older literature sometimes advocated a charge via "other operating costs".

Other costs are not eligible for allocation.

If Legionella contamination is present, the costs for further investigations, follow-up investigations, and the costs incurred for the elimination of Legionella contamination are not chargeable operating costs and must be paid by the landlord.

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Are you a landlord or property manager of a condominium association? Then check here whether your building requires a Legionella test and order it today.

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