When purchasing real estate, the seller must disclose hidden defects if they are aware of them. However, according to a ruling by the District Court of Frankenthal, the burden of proof for this lies with the buyer.
To prevent issues, liability for material defects in real estate purchase contracts is regularly excluded. However, the exclusion of liability only applies to defects that were detectable by the buyer. The seller is still obligated to disclose hidden defects. If such defects are fraudulently concealed by the seller, the exclusion of liability does not apply, and the seller is liable, explains the business law firm MTR Rechtsanwälte.
A condition for the seller’s liability for hidden defects is that they were also known to the seller. The burden of proof for this knowledge lies with the buyer, as decided by the LG Frankenthal in a judgment on November 24, 2021 (Ref.: 6 O 129/21).
In the case in question, a married couple purchased a residential house. The seller had lived in the house himself for many years. Five years after the couple moved into the house, they claimed that the roof insulation was deficient. The insulation panels used were unsuitable, and there was a lack of a so-called vapor barrier. The couple therefore demanded an advance payment from the seller for proper insulation.
However, the LG Frankenthal dismissed the lawsuit. It reasoned that an exclusion of liability was effectively agreed upon in the purchase contract. Therefore, a prerequisite for the seller’s liability was fraudulent conduct. However, it was not proven that the seller was aware of the defect in the roof insulation and fraudulently concealed it, the LG Frankenthal further explained. The roof was neither leaking nor damp, and the requirements for the energy certificate were also met. Furthermore, the seller had lived in the house with his family for ten years without restrictions and had also used the attic. Therefore, it could not be assumed that he was aware of the defect. The seller is not responsible for defects that should have been noticeable, the court stated.
Lawyers with experience in real estate law can provide advice.
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