Federal Court of Justice (BGH) Judgment dated 06.12.2025 – Case No. V ZR 229/23
In real estate purchase contracts, precise wording is crucial, with the correct form of contract drafting being decisive to ensure legal clarity and effectiveness. According to general language usage, a “completely renewed roof” does not only refer to the renewal of the roof’s outer covering. This was clarified by the BGH in its judgment of December 6, 2024 (Case No. V ZR 229/23).
Material defects are a common issue in real estate purchases. In principle, the seller is liable for defects that impair the property’s usability. To reduce liability risk, warranty exclusions are often agreed upon in real estate purchase contracts. Such an agreement must be explicitly stated and correctly formatted in the contract to be effective. However, the warranty exclusion does not apply if the seller has fraudulently concealed defects, according to the law firm MTR Legal Rechtsanwälte, which advises among other areas in real estate law.
Introduction to Liability for Material Defects
Liability for material defects is a central element of German sales law and plays a crucial role, especially in the purchase of real estate. It governs the rights a buyer has when the purchased item – for example, a house or a roof – has a defect. The Federal Court of Justice (BGH) in Karlsruhe, located on Herrenstraße, is responsible for interpreting and further developing the provisions regarding liability for material defects.
If problems arise after roof renovation or roofing, such as if the roof truss or other parts of the roof were not renewed as agreed, the buyer can assert various rights. These include supplementary performance, i.e., removal of the defect by the seller, reduction of the purchase price, or – in case of significant defects – even withdrawal from the contract. The specific design of these rights depends on the respective contract and the circumstances of the individual case. Especially in the area of roof renovation, it is therefore important that both buyers and sellers know their rights and obligations precisely to avoid later disputes.
Roof and Energy Efficiency
The roof of a building is not only responsible for protection against wind and weather, but also has a significant impact on the overall energy efficiency of the house. Proper roof insulation can significantly reduce heating costs and ensures less energy is lost. Depending on the roof shape and size of the roof surface, different insulation methods are used, such as above-rafter insulation, between-rafter insulation, or under-rafter insulation. The choice of suitable insulation depends on structural conditions, costs, and individual building requirements.
During a roof renovation, there is an opportunity to sustainably improve the building’s energy efficiency. It is worthwhile to check the various funding programs that can financially support energy-efficient renovations. An independent advisor helps compare the different options and make the right decision for one’s own house. This not only reduces ongoing heating and additional costs but also increases the property’s long-term value.
Roof Renovation Described as “Completely Renewed” in the Exposé
In the underlying case before the BGH, a married couple purchased a single-family home in 2021. Liability for material defects was excluded. The real estate agent’s exposé of the house, built in the 1970s, explicitly stated that the roof was “completely renewed” in 2009. In a complete renewal, the building fabric and roof structure of the building must be considered to avoid long-term damage and defects. As the lower courts had already found, only new bitumen membranes had actually been glued or welded onto the roof. The couple subsequently asserted warranty claims. They argued that the roof had not been completely renewed and did not meet the requirements of the Energy Saving Ordinance (EnEV). They therefore demanded reimbursement of around 20,000 euros for a full roof replacement, also pointing to possible damage to the building fabric and roof truss.
Maintenance of the roof and selection of suitable roof tiles are essential in roof renewal to ensure the building’s durability and protection. In building modernization, the installation of roof windows and attic expansion also play an important role, as new roof windows and attic conversions create additional living space and improve energy efficiency. Financing a roof renovation can be supported by government subsidies, significantly reducing costs and facilitating implementation. For a planned roof renewal, it is advisable to obtain a detailed offer and submit inquiries to qualified specialist companies to find the best solution. A comprehensive overview of the various offers, systems, and available information helps make the right decision for the roof renewal.
The legal aspects of the purchased item, the purchase price, and the rights of buyers in case of defects must also be taken into account: If the purchased item has defects or material defects, buyers may under certain conditions claim damages from the seller or lessor. This particularly applies to damages to items that are the subject of the purchase contract. Court proceedings, especially before the Higher Regional Courts, are an important part of the appeals process in disputes about material defects and damages. In the course of real estate transactions, communication via email is increasingly important for efficiently exchanging information and documents.
The structural reasons for a roof renewal often lie in the condition of the ground and buildings, whereby the location in the countryside also plays a role in the choice of property. Roofs are central to the energy efficiency and protection of the house. This article provides a comprehensive overview and guide on all relevant topics concerning roof renewal, selecting the right offers, and liability for material defects.
General usage is revisable
The Federal Court of Justice (BGH) did not agree with this argument and overturned the verdict of the Higher Regional Court (OLG) Dresden. The form of the contractual agreement and the clarification of open legal questions by the BGH are decisive for legal certainty and uniform jurisprudence. The BGH emphasized two principles: First, the so-called “general usage” is not an absolutely binding interpretative rule but a general rule of experience which — like other rules of experience — is revisable. Second, there is no universally applicable usage whereby the phrase “roof completely renewed” must always be understood as only the renewal of the top roof layer. Such a usage cannot be found in the Duden dictionary, the BGH stated. There is also no indication that such a general usage has developed.
The appellate court must decide again
What constitutes a complete roof renewal cannot be generally defined because it also depends on the type of roof and roof structure, the BGH further explained. In the German judicial process, the Federal Court of Justice and the Higher Regional Courts play a central role as they ensure review and interpretation of decisions at various procedural levels. For the liability of the defendants, it is therefore decisive what an honest and reasonable buyer could have understood from the information in the exposé in good faith and according to common practice. The key question is whether an average buyer could have expected, from the information given, a complete renewal of the roof including the substructure.
The BGH referred the case back to the appellate court. The OLG must examine what type of roof it is and what layers it consisted of at the time of the sale. In the further proceedings, the hearings and judicial decisions are of special importance as they largely determine the outcome of the legal dispute. The defendant can only invoke an exclusion of liability if it did not act fraudulently.
As detailed information as possible in the exposé
The BGH’s decision shows that information in the exposé should be as detailed as possible. General phrases such as “completely renewed,” “refurbished,” or “like new” can be interpreted strictly if in doubt. Anyone who creates the impression in an exposé that a comprehensive modernization has taken place, although only selective work was actually carried out, risks being held liable for the difference between expectation and reality. A warranty exclusion in the purchase contract often does not help in this case because such statements constitute a concrete agreement on condition that binds the seller.
Therefore, it is crucial for both buyers and sellers to receive comprehensive information and to gain a clear overview of the relevant aspects.
The BGH has strengthened the position of buyers with this decision. Unclear or exaggerated statements must not be at the buyer’s expense.
The verdict demonstrates how important precise language is in real estate law. This article serves as a helpful guide for liability in case of material defects during roof renewal.
MTR Legal Rechtsanwälte provides comprehensive advice in real estate law.
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