Disclosure obligations in property sales: Crucial changes to the building structure
When selling real estate, there are extensive information obligations for the seller toward potential buyers. Particularly structural modifications that can impact the statics or the load-bearing structure of a residential building are at the center of current jurisprudence. In its ruling of February 26, 2024 (Case No. 7 U 45/23, OLG Zweibrücken)*, it was clarified that the seller must disclose significant changes to the statics unsolicited, even if these were approved or executed professionally.
Significance of structural changes in property sales
Changes to load-bearing components – such as the subsequent breakthrough of walls, creating new openings in the masonry, or removing supports – can have significant impacts on the building’s safety and the property’s value. This not only affects the operational safety but can also influence future construction measures and the insurance status.
Scope and nature of the disclosure obligation
If considerable interventions in the load-bearing building structure occur subsequently, particularities must be noted: The selling owner must inform the potential buyer independently and unsolicited before concluding the contract, regardless of whether the measures are subsequently approved, comply with building regulations, or were carried out with the involvement of qualified craftsmen. A mere reference to a technically flawless or approved execution is not sufficient, as there remains a significant risk for the buyer.
No relief through contractual warranty exclusions
Although contracts for existing properties regularly contain clauses excluding warranties, this does not protect the seller regarding situations recognized by jurisprudence as so-called disclosure obligations. Especially with significant structural interventions, the transparency requirement is particularly important – if the necessary information is not provided, this can result in claims for damages, rescission, or reduction.
Practical relevance for property sellers and buyers
The effects of undisclosed structural-relevant construction measures are not limited to potential losses in value. Buyers risk facing costly rectifications, insurance problems, or restrictions in planned use concepts. Sellers, on the other hand, face the risk of comprehensive liability if information is omitted, which often extends beyond the immediate economic damage and questions contract security.
Differentiation from minor measures
Not every structural change gives rise to a disclosure obligation. Minor measures, such as replacing non-load-bearing walls or purely decorative modifications, do not fall within the scope of this decision. What is decisive is whether it is a significant change to the load-bearing structure and whether a reasonable buyer – recognizable from the seller’s perspective – would place particular importance on it.
Impact on contract practice
The decision of the OLG Zweibrücken once again emphasizes the importance of factual clarification in real estate transactions. Sellers are urged to disclose all facts known to them that are essential for the buyer and not obvious or easily identifiable before concluding the contract. This not only protects the buyer but also minimizes the seller’s own liability risk and ensures sustainable legal security for both parties.
Note on ongoing proceedings and source reference
As far as court proceedings are pending, it should be noted that final legal assessments in individual cases may depend on the decision of the final instance (Case No. 7 U 45/23, OLG Zweibrücken, retrieved on June 6, 2024, see urteile.news). The presumption of innocence applies until the case is conclusively resolved, insofar as contentious facts are involved.
Summary and outlook
The obligation to unsolicitedly disclose structural changes in property sales is to be understood as a central element of contract fidelity and duty of disclosure. It not only protects the buyer’s interests but also significantly contributes to legal certainty and the reduction of later liability disputes. For companies, investors, and wealthy private individuals, this results in an increased need for examination and information in the context of real estate transactions.
If questions regarding statics-related changes arise in the sale of real estate or the interpretation of disclosure obligations, the attorneys at MTR Legal are available as reliable contacts in commercial and real estate law throughout the country and internationally.
