Caretaker is unavailable: substitutes and cost reimbursement under old contracts

Where a caretaker employment relationship was concluded before 1 July 2000, the substitute arrangement depends on the reason for the absence. Section 17 of the Caretaker Act distinguishes between a substitute generally arranged by the caretaker, reimbursement of costs for specified absences and a substitute arranged and paid for by the building owner.

Section 31(5) HbG must be checked first. The Act continues to apply to those older contracts, while it no longer applies to employment relationships concluded after 30 June 2000. The rule addresses substitution and costs. It does not terminate the employment relationship or automatically remove the service flat.

Section 31(5) HbG: when the old contract is covered

Section 31(5) HbG draws the temporal line at the conclusion of the employment relationship. The Caretaker Act no longer applies to employment relationships concluded after 30 June 2000. It continues to apply, including future amendments, to employment relationships concluded before 1 July 2000.

The contract date therefore belongs at the start of the review. The contract, amendments, personnel records and a traceable employment chronology should describe the same basis. Calling a person a caretaker does not by itself establish the temporal scope.

This article addresses the special substitution rule of the HbG within that scope. A different employment relationship or a later arrangement must be assessed separately under the rules applicable to it.

Section 17(1) HbG: the caretaker generally arranges the substitute

If the caretaker is prevented from performing the duties, section 17(1) HbG generally requires the caretaker to arrange a substitute through another suitable person at the caretaker's cost. The selection and period should be recorded against the duties that actually have to be performed.

An exception applies where a sudden service incapacity caused by illness or accident prevents the caretaker from fulfilling that duty. Section 17(1) HbG does not create a special duty for the building owner to keep a substitute ready in advance for that situation.

The absence therefore does not automatically terminate the employment relationship or call for an ordinary building-maintenance company under a new works contract. The individual substitution case and the remaining employment duties must be recorded separately.

Section 17(2) HbG: when the building owner reimburses costs

For incapacity caused by illness or accident, for holiday and for educational leave under section 118 ArbVG, the building owner must reimburse the caretaker for the cost of the substitute. Under section 17(2) HbG, reimbursement is capped at the average monthly gross pay that would otherwise be due to the caretaker for that period.

The file should separately record the period, reason, appointed person, agreed pay and relevant average monthly gross pay. An invoice alone does not show whether the statutory situation exists or whether the cap has been respected.

The provision is not a blanket approval for every replacement service. Even a longer absence must be compared with the relevant period and the pay that would otherwise have been due. The facts determine which further records are needed.

Section 17(3) HbG: when the building owner arranges the substitute

During employment prohibitions under sections 3 to 5(1) MSchG, parental leave under the MSchG or VKG, release under section 117 ArbVG and extended educational leave under section 119 ArbVG, the building owner must arrange and pay for a substitute.

These situations differ from illness, accident, holiday and educational leave under section 118 ArbVG. Responsibility for organising and paying for the substitute cannot therefore be inferred from a general absence note. The file should state the specific statutory reason, beginning and end and the substitution arrangements.

The building owner should record the duties, period, suitable substitute and cost approval in writing. This keeps the obligation under section 17(3) HbG distinct from organisational questions outside that provision.

Service flat: continued use remains protected

Section 17(3) HbG expressly provides that the caretaker's entitlement to retain the service flat remains unaffected. A substitute during an employment prohibition, parental leave or covered release therefore does not by itself create a basis for vacating the flat.

For periods of parental leave, release under section 117 ArbVG and extended educational leave under section 119 ArbVG, agreements concerning activities directly connected with the service flat are permitted. Such agreements should state their content, period and practical implementation clearly.

The housing question must be kept separate from the cost question. A substitute paid for by the building owner does not automatically determine how the service flat is used. Conversely, continued housing protection does not change who arranges the substitute under the relevant subsection.

Records supporting the substitution and cost review

The first file should contain the contract date and employment contract, amendments, duties, service flat, absence notice and specific reason for the absence. For illness, accident, holiday and educational leave, it should also show who appointed or arranged the substitute.

The cost file should contain the substitute agreement or invoice, period, proof of services and payment record. The average monthly gross pay that would otherwise have been due for the same period must be established separately. Under section 17(3) HbG, the owner side should also document its own decision to organise and fund the substitute.

A short chronology prevents the employment relationship, service flat, substitution and reimbursement from being merged. This is especially important where an ownership change or new management is being prepared. The article on taking over apartment-building management covers the transfer of accounts, powers and records.

Ownership change and management: transfer an open substitution early

When ownership changes, the old contract, current absence, substitution arrangement and payments to date should be transferred together. A note that the caretaker is unavailable does not show the statutory situation or the cost cap.

The handover matrix should also include the service flat, keys and access, ongoing orders, contacts, accounting and the status of the substitute services. The information should allow the new management to continue the arrangement and allocate costs to the correct period.

The article on owner changes and the transfer of leases covers the general handover. An old caretaker contract additionally requires the temporal scope of the HbG and the allocation under section 17 to be recorded.

Next steps for owners, caretakers and management

Start by checking the date on which the employment relationship was concluded. Then assign the reason for the absence to a subsection of section 17 HbG. Only then can responsibility, substitution, costs and the service flat be brought together in a reliable file.

For a further review, have the employment contract and amendments, absence notice, substitution agreement, service records, statements, gross-pay records and service-flat documents ready. An ownership change also requires the handover matrix, key record and ongoing management orders. The apartment-building risk check can help structure the records for an initial review.

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