Rental charge vs. rent: legal distinction in lease

A landlord cannot decide what to rebill. The list of charges recoverable from the tenant is fixed by decree, and it is exhaustive: whatever is not on it remains the landlord's responsibility, whatever the lease says. Yet this simple rule generates most rental disputes, because it runs up against a persistent intuition — the idea that any expense linked to the dwelling should be passed on.

Two sums of a different nature

Rent is the consideration for making the dwelling available. It is freely set on reletting, except in rent-control zones, and it does not need to be justified.

Rental charges, also called recoverable charges, are the reimbursement of expenses the landlord has advanced on the tenant's behalf. They are not income: they must be justified, itemised and reconciled. Confusing the two is the first mistake, and it has a direct consequence — a sum claimed as charges that cannot be justified is not owed.

Three categories, and nothing else

The decree that sets the list identifies three families of recoverable expenses:

• Services provided to the tenant. Cold and hot water, collective heating, electricity for common areas, the lift.
• Routine maintenance expenses and minor repairs on common areas and shared equipment. The key concept is maintenance, as opposed to replacement.
• Taxes corresponding to services the tenant benefits from. The household waste collection tax is the typical example.

The split almost always plays out in the second category, and the dividing line is this: maintaining is recoverable, replacing is not. The boiler's maintenance contract is recoverable; a new boiler is not. Cleaning the common areas is recoverable; refacing the building's front is not.

What is never recoverable

Four items systematically come up in disputed statements, and none of them is recoverable:

• major works and the replacement of equipment, even when they improve the tenant's comfort.
• management fees paid to a property manager or an agency.
• legal costs incurred by the landlord, including against the tenant themselves.
• insurance premiums taken out by the owner, in particular non-occupant owner's insurance.

A lease clause providing otherwise is deemed unwritten. The lease cannot broaden a list that the decree intended to be exhaustive.

Provisions, reconciliation and flat-rate charges

The normal arrangement is monthly provisions followed by an annual reconciliation. Reconciliation is not optional: it is mandatory, and it requires giving the tenant a statement broken down by type of charge, along with the method used to apportion costs between units.

The landlord must keep supporting documents available to the tenant for six months from the date the statement is sent. This availability requirement is the linchpin of the system: without inspectable supporting documents, the sum claimed becomes indefensible. Organising this record-keeping by financial year and by unit is one of the routines described in our property management guide.

Two mechanisms protect the tenant against accumulated charges:

• When reconciliation has not been carried out before the end of the calendar year following the year the charges fell due, the tenant may request to spread payment over twelve months.
• Sums wrongly collected, like sums left unpaid, are time-barred after three years.

The flat-rate charge is the other possible arrangement. It is permitted for furnished lettings and shared tenancies. Its amount must be set reasonably in relation to actual charges, and in that case there is neither reconciliation nor supporting documents to provide — but nor can it be revised on the grounds that actual charges exceeded the flat rate. It is a trade-off between simplicity and flexibility, to be decided when drafting the lease and not during its term.

The case of commercial leases

The regime is entirely different, and a landlord managing both types of lease cannot reason by analogy.

In commercial matters, there is no exhaustive list of recoverable charges. The principle is one of contractual freedom, but it is regulated: the lease must include a precise and exhaustive inventory of the categories of charges, taxes, duties and fees linked to the lease, indicating how they are apportioned between landlord and tenant. Certain expenses cannot be passed on to the tenant, in particular major repairs within the meaning of the Code civil and compliance works falling within those major repairs.

The landlord must also provide a forecast statement of works and a summary statement of works actually carried out. The absence of an inventory in the lease does not render the contract void, but it deprives the landlord of the ability to rebill.

Usage scenarios

Moving in. The amount of provisions must be set based on the last actual statement, not simply copied from the previous tenant if consumption has changed. A provision that is clearly underestimated results in a heavy reconciliation that is likely to be disputed.

Annual reconciliation. The statement must be sent with a breakdown by type of charge. Keeping proof of when it was sent avoids having to prove, two years later, that it was indeed sent.

Tenant's departure. The effective date of the notice to quit, whose terms are detailed in our article on lease termination, marks the end of the period for which charges must be reconciled. Charges not yet reconciled cannot be freely offset against the security deposit: its return follows its own deadlines, and an unjustified deduction exposes the landlord to late-payment penalties calculated per month begun.

Frequently asked questions

Can the landlord recover the property tax? No, except for the household waste collection tax, which corresponds to a service the tenant benefits from. The rest of the property tax remains the owner's responsibility.

Can a lease clause add recoverable charges? No, for residential lettings: the list set by decree is exhaustive, and any clause to the contrary is deemed unwritten. For commercial leases, the logic is reversed — it is the inventory set out in the lease that defines what can be rebilled.

What can be done if the landlord never reconciles the charges? The tenant can demand reconciliation and, where it happens late, request that payment be spread over twelve months. The sums concerned are time-barred after three years.

Can the tenant demand to see the invoices? They can inspect the supporting documents, which the landlord must keep available for six months after the statement is sent. This right of inspection is not limited to the overall statement: it covers the supporting documents themselves.

Is replacing a boiler recoverable? No. The maintenance contract is recoverable, replacing the equipment is not. The dividing line runs between maintaining and replacing, not between necessary and superfluous.

Can the flat-rate charge be revised? It changes according to the terms set out in the lease, but it cannot be topped up on the grounds that actual charges turned out to be higher. That is the trade-off for not having reconciliation or supporting documents.

Key takeaways

The rule fits in one sentence: for residential lettings, the list of recoverable charges is fixed by decree and is exhaustive, and the lease cannot broaden it. Everything else follows from this — maintenance is recoverable, replacement is not; management fees, the owner's insurance and legal costs are never rebillable.

In practice, two obligations decide the outcome of a dispute: reconciling charges every year with a detailed statement, and keeping supporting documents available for six months. A landlord who does both, and keeps dated proof of it, wins disputes. One who claims provisions without ever reconciling them loses, even when the sums were actually owed.