Building defects and warranty
A stain on the wall, a crack in the façade, heating that never quite warms up. Whether you can still require the defect to be put right turns above all on two questions: when the property was handed over, and what can be proved.
The warranty period starts with the handover, not on the day the defect catches your eye. Damage that shows itself in the fourth winter may already be too late for that — even if there was no way you could have seen it earlier. For damages a different clock runs, and what matters there is from when you knew of the loss. So anyone who suspects that something is wrong should not wait to see whether it gets worse.
Damp, cracks, leaking windows, through to structural problems. What matters is not only when the damage became visible, but above all whether its cause was already there at handover.
In practiceGet in touch as soon as you suspect something, not once you are certain. Establishing whether there is a defect at all is our part. Your part is that no time is lost over it.
Two different claims that are often confused. The warranty requires no fault — it is enough that the property was not as it should have been at handover. Damages require fault, but they remain open for longer and can cover the defect itself as well as the consequential loss.
In practiceThe crack in the façade falls under the warranty, the water damage in the apartment behind it under damages. As a rule both are pursued together.
Whoever handed the property over is liable for defects that were already present, or already latent, at handover. For an apartment or a house, the defect must come to light within three years of handover. You can then generally still take it to court for up to three months after that. If a defect appears in the first six months, it is presumed to have existed at handover. After that the presumption reverses and you have to prove it.
A defect that has been fixed is a defect nobody can see any more. Dated photographs, the handover record, the building and fittings specification, all the correspondence. Where larger sums are at stake, an expert report comes on top.
In practiceThe most common mistake is well meant: people have the damage repaired to stop it spreading, and are then left without proof. Call us first. Going about it the right way can decide the case.
Under the warranty, first that the defect be remedied. Only if that does not happen, is impossible, or would be unreasonable for you, do a reduction of the price or — unless the defect is merely minor — unwinding the contract come into consideration.
In practiceThis order can usually not be skipped. Whoever demands money straight away instead of first requiring the defect to be remedied can lose at that point, and not on the defect itself.
The roof, the façade, the stairwell and the shared pipework are usually part of the common property of the building. Your claims still rest, as a rule, on your own purchase contract. But special rules apply when it comes to pursuing them. It may be necessary to coordinate with the owners' association.
In practiceThis is easily overlooked and it costs months. Whoever proceeds alone over a leaking roof can fail on a formality, even though the defect is undisputed.
When you buy from a private seller, the contract usually excludes the warranty. That is permissible in principle. But the exclusion does not cover a defect the seller knew about and concealed from you.
In practiceThat is exactly what is at stake with defects that surface later. Whether the seller knew often shows in small things: a freshly painted patch, a repair mentioned in passing, a letter from the property manager.
If the defect is not put right, the next step is a letter before action with a deadline. If that leads nowhere, the route is to court. In building disputes the report of a court-appointed expert as a rule tips the balance, and it has to be paid for in advance.
In practiceA considerable share of cases ends at the letter before action. Whoever has documented things cleanly up to that point negotiates from an entirely different position.
Send us what you have: photographs, the handover record, the purchase contract, the correspondence. Ideally before anything is repaired.
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A general overview, not advice on an individual case. Which time limits apply and what is enforceable in a particular case depend on the contract, on the date of handover and on the defect itself. In case of doubt the German version prevails.