Federal Court of Justice: BHW annual fee ineffective
A clause in the building savings conditions of Bausparkasse BHW, according to which customers have to pay an annual fee of 12 euros for account management during the savings phase of their building savings contract, is inadmissible. This was decided by the Federal Court of Justice in response to the lawsuit brought by the Federal Association of Consumer Organizations (vzbv) against BHW Bausparkasse. BHW must now change its conditions and reimburse the annual fees that were wrongly withheld.
Federal Court of Justicejudgment of 15.11.2022
File number: XI ZR 551/21
Consumer lawyers: law firm Loh, Luig & Matzkat, Lübeck
As early as 2017, the Federal Court of Justice had banned fees for maintaining the credit account after the building society loan had been paid out at the request of the North Rhine-Westphalia consumer advice center as unlawful.
Federal Court of JusticeJudgment of 09.05.2017
File number: XI ZR 308/15
The lawyers at Stiftung Warentest are convinced: All fees paid annually as part of home savings contracts are illegal. The building societies have to reimburse them.
Our advice: request reimbursement with our sample texts
request reimbursement. Use our sample letter to ask your building society to reimburse annual fees that have already been debited. Contact the ombudsman if the building society does not comply with your request. That stops the statute of limitations. Our sample text also offers a template and information for this procedure. The effort is minimal and in our estimation you will probably get your money.
closing fee remains. All annual fees in home savings contracts are invalid. However, the one-off fee of at least several hundred euros that is due when building savings contracts are concluded is still effective. The Federal Court of Justice expressly approved it many years ago.
Account management is not a special service
According to the judges in Karlsruhe, an account fee in the savings phase contradicts the legal concept of a home loan and savings contract. In this phase, the building society customer is the lender who, according to the statutory provisions, does not owe any payment for the granting of the loan. In addition, the building society manages the accounts in its own interest. This did not give home savers any particular advantage, only what they can expect anyway according to the contractual agreements and legal provisions.
Building societies not yet convinced
Initial reactions from building societies to claims for reimbursement show that they are not yet convinced. Schwäbisch Hall spokesman Stefan Speicher explained to us: “The judgment is therefore unlikely to have any direct impact on the regulations on the annual/contractual fee of Bausparkasse Schwäbisch Hall. Our regulation in the General Building Savings Conditions (ABB) on the “annual/contractual fee” differs from the BHW clause in important points that are relevant for the legal assessment. The Schwäbisch Hall conditions state: The annual fee is to be paid “…for the procurement and maintenance…” of the entitlement to the home loan.
The test.de lawyers are not convinced. After all, building society customers have to pay the closing fee, which costs at least several hundred euros, immediately after signing the contract. They think: Schwäbisch Hall also has to reimburse the annual fees. After all, the Schwäbisch Hall lawyers want to examine the reasoning behind the judgment of the Federal Court of Justice as soon as it is available – probably in a few weeks. Maybe they’ll change their minds after all.
Riester contracts are also affected
The lawyers at Stiftung Warentest are certain: Even with Riester home savings contracts, the annual fees are ineffective and building societies have to reimburse them. The Landesbausparkassen see it differently: the law on Riester contracts expressly permits annual fees, write Kathrin Hartwig from the Landesbausparkasse Südwest and Ivonn Kappel from the federal office of the Landesbausparkassen, after we responded to the tip of our reader “DDausend” (see in the reader comments on this article, 11/18/2022, 10:51 a.m.) specifically asked. We don’t think that’s right. The rules on Riester contracts allow certain fees and annual fees in principle. Insofar as these appear to be unfair disadvantages for customers, such as additional annual fees for building loan contracts, they are and remain ineffective according to the general rules in the German Civil Code.
No statute of limitations yet
Banks and building societies usually only reimburse inadmissible fees for the past three calendar years. This corresponds to the general limitation period. However, the European Court of Justice ruled last year that claims for reimbursement of fees paid on the basis of unfair terms must not be time-barred before consumers have realized that they have a right to reimbursement.
European Court of JusticeJudgments of June 10, 2021
Case numbers: C-609/19 and C-776/19 to C-782/19
An addition in September: Even a ten-year statute of limitations is illegal in the EU when it comes to services within the framework of a contract with a term of more than ten years.
European Court of Justicejudgment of 08.09.2022
Case numbers: C-80/21, C-81/21 and C-82/21
We initially recommended requesting reimbursement of the fees paid within the last ten years. We are now thinking after evaluating the new judgment of the European Court of Justice: home savers are currently entitled to reimbursement of all payments made since the contract began. The claim for reimbursement of annual fees in the savings phase expires on December 31, 2024 at the earliest. We changed our reporting and sample texts accordingly on November 23, 2022. The current sample letters also contain sample texts for building savers who requested reimbursement with the first version of our sample letters and also want to request reimbursement of fees that they paid more than ten years ago.
Debeka has to reimburse the service fee
In the meantime, a clear case: The service fee introduced in 2017 for existing contracts by Debeka “For the technical building society administration and control of the collective as well as the management of the allocation mass”, according to the cash register, the savers should pay 12 or 24 euros a year, depending on the tariff. Ineffective, the Koblenz Higher Regional Court ruled on a lawsuit brought by the consumer advice center in Saxony. It is not an additional benefit for savers.
Koblenz Higher Regional CourtJudgment of 05.12.2019
File number: 2 U 1/19
Regional Court of Hanover prohibits LBS Nord account fee
Landesbausparkasse (LBS) Nord was also not allowed to introduce account fees in 2018. This was decided by the Hanover Regional Court at the request of the Federal Association of Consumer Organizations (vzbv). The building society had announced the account fee of 18 euros per year in a circular. In return, they provide “all the services that are required to obtain the entitlement to the interest-proof home savings loan”. The judges criticized the building society for passing on general operating costs to the customer with the fee. They obliged the Bausparkasse to inform all affected customers about the invalidity of the contract change – or to refund the wrongly debited money immediately.
District Court of HanoverJudgment of 08.11.2018
File number: 74 O 19/18
LBS Nord withdraws appeal
LBS Nord appealed against the district court’s decision, but withdrew it after a decision by the Celle Higher Regional Court. The judges had announced that they would dismiss the appeal as “manifestly unfounded”. With the account fee in the savings phase, the building society is impermissibly passing on its own expenses to the customers.
Celle Higher Regional Courtdecision of 27.03.2019
File number: 3 U 3/19
Tip: You can find information and tests on everything to do with building savings on our Building Savings topic page.
