Decision by the Higher Regional Court of Oldenburg on July 17, 2023, Ref.: 12 U 214/19
In the construction of a property, the acceptance of the building is a critical date for the client. This is because the time of acceptance is crucial for determining whether defects exist and whether the construction company must remedy them. For defects discovered only after acceptance, the client bears the burden of proof. This was highlighted in a decision by the Higher Regional Court of Oldenburg on July 17, 2023 (Ref.: 12 U 214/19).
“Shoddy construction work” is a recurring issue. Unprofessionally conducted construction work is not only annoying for the client but can also be costly if defects need to be corrected later. Therefore, acceptance of the building plays an extremely important role for the client. If defects are discovered during acceptance, the construction company must rectify them at its own expense. However, if the building is accepted and defects are discovered only afterward, the client must prove that the contractor is responsible for the defect, according to the law firm MTR Legal Rechtsanwälte, which advises, among others, on real estate law.
Client Withholds Part of the Work Payment
The necessity for the client to thoroughly inspect at the time of acceptance is emphasized by the decision of the Higher Regional Court of Oldenburg. In the case in question, the client had a timber-frame house constructed and accepted it. Only after acceptance, during an independent evidence procedure, was it found that the house did not achieve the required tightness. The client attributed the defect to errors by the contractor. However, the contractor considered subsequent structural changes as the cause of the defect. Additionally, leaks were found in the areas of windows, shutters, and doors, for which the client was responsible.
When the client withheld part of the owed work payment, the contractor sued for the remaining payment.
The evidence presented in the first instance could not clarify whether the contractor was responsible for the construction defect. It was shown that he had not carefully sealed joints between the concrete slab and the walls in some areas. However, it could not be proven whether this was decisive for the insufficient tightness of the house. Similarly, errors in other trades, for which the plaintiff was not responsible, could have caused the lack of tightness.
Client Bears the Burden of Proof
The contractor’s claim for the remaining work payment was ultimately successful. The Higher Regional Court of Oldenburg reasoned that the client bears the burden of proof for defects reported only after acceptance. The assessment of whether a performance is defective is generally based on the time of acceptance. Therefore, a defect cannot be justified solely by a condition that occurred after acceptance.
The client was unable to sufficiently demonstrate that the contractor was responsible for the defect and that the building was already defective at the time of acceptance. The evidence did not provide clear conclusions as to which of the various leaks were responsible for the building’s insufficient tightness and to what extent. Therefore, the contractor is entitled to payment of the outstanding work payment, decided the Higher Regional Court of Oldenburg.
Importance of Building Acceptance
The decision by the Higher Regional Court of Oldenburg underscores the importance of building acceptance. It is crucial to determine whether the building was defective at the time of acceptance.
If defects are found during building acceptance, the contractor must rectify them at his own expense. When asserting warranty claims, the warranty periods stipulated in construction law must be observed. These can vary depending on the type of construction contract. For a construction contract according to the BGB (German Civil Code), the period is 5 years, whereas for a construction contract according to the VOB (Construction Contract Procedures), different periods may apply. The limitation period for warranty claims begins with the acceptance of the construction by the client. If defects were fraudulently concealed, the limitation period starts only when the defect becomes known.
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