Entitlement to a defect-free parking space when purchasing an underground garage parking space: Current developments from case law
The Berlin Higher Regional Court, in its decision of May 30, 2024 (Case No.: 21 U 138/24, not yet final), commented on the requirements for the condition of underground garage parking spaces. At its core, the issue is whether, and under what conditions, a parking space is considered defective within the meaning of purchase law if it can only be accessed or exited by reversing. This ruling offers new approaches for the legal classification of the so-called “usability” of parking spaces and has significance for sellers and purchasers of real estate, developers, and investors beyond the individual case.
Freedom from defects and contractually owed condition
According to Section 434 of the German Civil Code (BGB), the seller of a parking space owes the buyer a condition that both conforms to what was agreed in the contract and guarantees the usual suitability according to the contractual purpose. The usability of a parking space is, according to the highest court’s case law, impaired if the buyer cannot use the parking space as was to be expected pursuant to customary practice and legitimate expectations of the buyer.
Reversing – mere circumstance or significant obstacle?
In the specific case, the decisive question was whether a parking space in an underground garage that can only be accessed or exited by reversing constitutes a material defect due to this circumstance. The court made a distinction between situations where reversing merely entails certain inconveniences and those in which objective difficulties go beyond the usual degree. According to the Berlin Higher Regional Court, the mere requirement to approach a parking space by reversing does not, in itself, constitute a material defect. Only if access is so restricted that usability is effectively excluded or unreasonably limited—such as due to structural narrowness, unusual vehicle dimensions, or unreasonable maneuvering requirements—could a defect be affirmed in individual cases.
Standard: Average driver and typical vehicle dimensions
The court also clarified that the assessment of suitability should not be based on the subjective abilities or preferences of individual buyers. Instead, the standard is the average user of an underground garage and an average-sized, commonly used vehicle. Individual circumstances, such as lack of confidence in reversing or the use of above average-sized vehicles, are only relevant if, based on objective criteria, they affect the protective purpose of the relevant regulations.
Structural standards and special cases
The decision also emphasizes that even compliance with technical regulations or DIN standards (for example, the parking space ordinance) does not necessarily indicate that a parking space is free from defects. Rather, these are only—albeit important—considerations in the assessment, but not decisive in themselves. Similarly, the specification in layout plans or floor plans does not by itself establish a concrete agreement on the condition—what remains essential is the overall assessment of the contract’s content and the actual possibilities for use.
Significance for contract execution and liability avoidance
For buyers and sellers, the decision by the Berlin Higher Regional Court means that parking space contracts should be precisely tailored to the actual circumstances and usage situations. Particular attention should be paid to describing the facility, notes on access and exit options, and any special features relating to use. Decisions in individual cases depend substantially on the specific configuration, the possible use by a reference user, and the degree of deviation from standard practice or reasonableness.
For property developers, project developers, and investors, the current legal situation is a reason to carefully review the planning and description of parking spaces as well as contract drafting, in order to avoid disputes regarding alleged material defects. Buyers, in turn, should check local conditions for actual usability, as legal protection depends on the objective suitability in each individual case.
The ruling highlights important principles relating to liability for material defects in real estate transactions and underscores how decisive the specific configuration and actual usability of parking spaces are. For further legal questions or if you are uncertain about specific contract terms, the lawyers at MTR Legal Rechtsanwalt are happy to assist with individual review and assessment.
