Architect as a consumer in the purchase of their own residential property: Current developments in consumer law
The relationship between architects and construction companies or developers takes on a special aspect when architects are involved in the implementation of private construction projects for properties they themselves own. The central question is whether, in such constellations, the architect is considered a consumer within the meaning of Section 13 of the German Civil Code (BGB), particularly with regard to the application of consumer-protective provisions in contract for work and services law as well as supplementary regulations.
The current case law of the Düsseldorf Higher Regional Court (OLG) (judgment of 16.12.2022, Case No. 5 U 268/20, source: urteile.news) provides occasion to examine this topic in detail and to assess its practical significance.
Classification of consumer protection in contract for work and services law
Definition of consumer and relevance for construction contracts
As is well known, the German Civil Code distinguishes between consumers and entrepreneurs (Sections 13, 14 BGB). A consumer is someone who enters into a legal transaction for purposes that predominantly cannot be attributed to their commercial or self-employed professional activity. For construction contracts, this opens up special protective mechanisms for private individuals, including rights of withdrawal and specific information obligations on the part of the contractor.
Architects’ privilege – specific features of dual roles
A legal interface arises for architects when they act in a dual capacity: on the one hand, they are typically classified as self-employed professionals, on the other, they can also serve as private clients when constructing or renovating their own residential property. Whether they can assert rights as a consumer in this situation depends significantly on the individual circumstances, especially on whether their actions are assigned to a professional or private sphere.
Key statements of the Düsseldorf Higher Regional Court on consumer status
Content and background of the decision
In the present proceedings, an architect who had entered into a construction contract for the renovation of his privately owned residential property was confronted with the allegation that, in view of his professional qualifications, he could not appear as a consumer. The Düsseldorf Higher Regional Court clarified that the decisive factor for classification is the purpose for which the legal transaction was concluded. If the property is used for private purposes—such as personal living space—and there is no intrinsic connection to professional projects, even an architect can act as a consumer in the legal sense.
The mere fact of architectural expertise does not in itself preclude consumer protection. What matters is whether private or professional interests are predominant at the time of contract conclusion.
Impacts on contract design and enforcement of rights
Classification as a consumer opens up a range of special rights: these include, in particular, the right of withdrawal for door-to-door and distance contracts (Sections 312g et seq. BGB), increased protection from unfair contract terms, and further claims for information. This distinction is therefore not only of crucial importance for architects, but for all self-employed persons acting as private clients in the construction sector.
Practical implications and distinguishing criteria
Distinction between commercial and private contractual purposes
The degree of connection between the construction project and the self-employed professional activity is the decisive criterion. If the architect ultimately intends the property for their own residential purposes, there are strong arguments in favor of recognizing consumer status. This applies regardless of any potential information advantages resulting from professional expertise: the regulations protecting consumers are strictly dependent on the purpose of the contract, not on individual expertise.
Typical issues in practice
In practical contract management, disputes frequently arise, particularly with respect to claims for defects, rights of rescission or withdrawal, as well as in connection with amendments and price adjustments. The classification of the client as a consumer can be decisive in litigation, for example, in relation to the validity of contract clauses or the enforceability of withdrawals.
Significance for future contract structuring and procedures
The current case law highlights the necessity of a case-by-case analysis when drafting contracts and later handling legal disputes. In particular, for market participants pursuing both private and commercial purposes, it is advisable to document the contract’s purpose prospectively and meticulously in order to clarify the applicability of consumer protection provisions.
The decision of the Düsseldorf Higher Regional Court, as known as of 16.12.2022 (source: urteile.news), is consistent with the predominant opinion in legal literature and was rendered on the basis of the specific circumstances presented. These are case-specific findings; no appellate aspects or final decision by the Federal Court of Justice are apparent as far as can be seen. The presumption of innocence and individual examination of the facts must be observed in each individual case.
Conclusion
The current development emphasizes how important a precise distinction between the private and professional spheres is—even in the area of planning and realization of private residential properties by architects. This differentiation can be decisive for choosing the correct contracts, understanding any rights and obligations, and in the event of a dispute.
For further legal questions regarding construction projects, consumer protection in contract law, or the drafting of complex agreements related to real estate matters, the lawyers at MTR Legal Rechtsanwälte are at your disposal.
