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I've rented a furnished apartment from the beginning of 2019 until last month in Baden-Württemberg, Germany

The rental contract stated that service charges/additional costs are paid as a monthly flat rate up to 90 Euro (inklusive pauschaler nebenkosten bis zu einem Betrag 90 Euro)

But now, the landlord noticed that the bills amount are higher than what I paid, and he sent me the invoice demanding an additional payment

I don't have a problem paying the amount, but to my understating, this should not be my responsibility

What should I do?

Should I pay him? what is the right thing to do here legally?

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    This is a strange contract. Is there anything else regarding the additional costs? The main question is if this is an agreement for a flat payment (as the word "pauschal" indicates, compare § 556 Abs. 2 S. 1 BGB ) or an advance payment (as "bis zu einem Betrag" could indicate). You should go to a Mieterverein. – Roland Aug 5 at 13:40
  • @Roland no nothing else is mentioned – user8879 Aug 5 at 13:45
  • Btw. your question does not involve even a hint of fraud. It also doesn't seem to relate too much to civil rights. – Roland Aug 5 at 14:04
  • @Roland thanks for your comment. I will edit the tags :) – user8879 Aug 5 at 14:12
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What to do?

@roland is right: contact the local Mieterverein. The Mietervereine are consumers' rights organizations that give legal advise on rental matters to renters.
This is usually the cheapest option to get a lawyer who is specialized at rental law.

The Mieterverein, btw., may find that the final accounting is wrong - the rules are rather complex (they have regular press releases that many or even most such accounts are wrong).

Nebenkosten/service charges, running costs...

source Default mode for Nebenkosten is to pay monthly advances and then have an annual invoice for the precise amount. It is possible to agree on a contract that uses a flat rate fee instead, i.e. there is no such final accounting and invoice. In my limited experience, that is cusomary for shorter-term rental agreements (say, subletting or renting for a few months where it is difficult to do the final invoice within a reasonable time) but unusual for rental contracts that are supposed to last over several years. The linked post says that if the contract is worded ambiguously, a proper annual and final accounting is to be done.

IANAL, but my lay understanding of your contract is that the text is at the very least ambiguous: "pauschal" points to flat rate, but a flat rate must be an exact fee, not "up to" (bis zu). Moreover the wording is ambiguous whether the up to refers to the running costs being covered up to the specified amount (i.e. everything above that you have to pay extra, likely the intention) or whether the running costs are capped at the specified amount (i.e. can amount to up to x).

According to this other post a contract may have some parts of the Nebenkosten as flat rate and others not. They also say that some specific running costs like heating and warm water must get a proper accounting.

Thus, I'd expect that in the end, getting a final account and invoice is probably correct since the attempt to make it a flat rate (if it was one) is likely void. (Final account is needed regardless of whether you have to pay or you have to get back some money).

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The contract covers costs up to (inclusive) 90/30 € per month.

You must pay the costs that are over that amount, just has you would have recieved a refund for the amount that was less than 90/30 € per month.

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    This answer would definitely be correct if the contract did not contain the word "pauschaler". Could you please explain your reasoning why this is not an agreement on a "Pauschale" according to § 556 BGB? – Roland Aug 5 at 13:44
  • @Roland Yes, this could very well be the case especially since electricity is included. For long term contracts, this form is rather rare. It would also be important to know of any further text further below which could effect how this is interpreted. This something that a Mieterverein should look into, since it something that they specialize in. – Mark Johnson Aug 5 at 19:47