1. GEIG and the Requirement to Retrofit Charging Points
The Building Electric Mobility Infrastructure Act (Gebäude‑Elektromobilitätsinfrastruktur‑Gesetz – GEIG), which entered into force in 2021, requires property owners to install preparatory wiring infrastructure for electromobility and, where applicable, to install charging points. The GEIG implements Directive (EU) 2018/844. With the planned amendment to the GEIG, the legislator will significantly tighten the requirements for charging and line infrastructure for electric vehicles. In addition to new construction and refurbishment projects, larger existing buildings will also come into sharper focus as of 2027.
For existing buildings (non‑residential buildings) with more than 20 parking spaces, the GEIG even introduces an unconditional retrofitting obligation, irrespective of whether a renovation of the building takes place or not. Pursuant to Section 10 (1) GEIG, the property owner is required, for each non‑residential building that has more than 20 parking spaces within the building or more than 20 parking spaces adjacent to the building, to ensure, without any further preconditions, that a charging point is installed after 1 January 2025. At this stage, the GEIG does not provide for a legal obligation to operate the charging point, but merely for the legal obligation to install it.
In principle, the requirements and obligations under the GEIG are of a purely public‑law nature. By contrast, the GEIG does not regulate issues arising in connection with a lease and its implementation in the landlord‑tenant relationship. With regard to the obligation to install charging points irrespective of the (new) construction or renovation of a non‑residential building, it is also not expressly regulated whether (public) building‑law consequences are to be expected if property owners fail to comply with their statutory obligations.
2. GEIG retrofitting duties and their impact on commercial lease relationships
The GEIG deliberately leaves usage‑related questions unaddressed. Property owners and tenants are therefore required to coordinate among themselves; depending on the factual constellation, a landlord may have to rely on the tenant’s cooperation. It should be noted at the outset that, as a general rule, the number of usable parking spaces for all vehicles is not initially reduced by the GEIG. A reduction will ultimately only occur if the charging point has to be installed on an existing parking space due to local conditions (instead of, for example, on a green strip in front of the building) and that parking space is therefore lost, or if, during peak times, a parking space needed for customers without electric vehicles is blocked by an electric vehicle that does not belong to a customer of the tenant.
The obligations arising under the GEIG can and should be reflected in existing lease agreements by way of amendments. In doing so, possible future legislative developments must already be taken into account. Particularly in the case of long‑term leases, the tenant may, depending on the circumstances, even have an own commercial interest in installing and operating the charging infrastructure itself. This enables the infrastructure to be tailored to its operational requirements and customer needs and, in particular, to link the price for charging electricity with marketing and customer‑loyalty measures. Depending on the specific constellation, property owners, charge point operators (CPOs) and tenants may develop joint business models and thus jointly fulfil the statutory obligations under the GEIG.
The installation of charging infrastructure generally qualifies as a modernisation measure pursuant to Sections 555b nos. 2, 4 or also no. 6 German Civil Code (Bür-gerliches Gesetzbuch – BGB) in conjunction with Section 578 (2) BGB and therefore obliges the tenant, on the one hand, to tolerate such measures, Section 555d BGB, while, on the other hand, typically allowing for a rent adjustment, Section 559 BGB. Depending on the lease structure, property owners and tenants may agree on a tai-lored cost allocation arrangement pursuant to Section 555f no. 3 BGB. The special right of termination arising from modernisation measures may, on the one hand, be excluded contractually in standard form lease clauses and, in our view, is in any event likely to be restricted by the principle of good faith.
If parking spaces which have been granted to the tenant for exclusive use are lost because the charging point can only be installed on such a parking space, the tenant may be entitled to a rent reduction in this respect. Even where parking spaces are merely granted for shared use, a rent reduction may be conceivable if the reduced number of parking spaces results in a restriction of the usability of the leased premises as such.
Particular attention must also be paid to the contractual arrangements with the charge point operator (CPO). These arrangements will likewise have repercussions for existing lease relationships.
