Definition and significance of cracks in law
The term “cracks” predominantly refers, in legal terms, to visible or tangible separations, splits, or fractures within materials or structures. Cracks regularly occur in connection with buildings, real estate, and movable property, and are of substantial importance in construction, contract for work, rental, and warranty law. The following provides a detailed overview of the legal aspects of cracks, including their definition, classification, relevance, and legal consequences.
Definition of cracks in a legal context
General description
Cracks are perceptible interruptions in the continuity of material, which may constitute structural or visual defects. They can affect components, masonry, concrete, wood, plaster, tiles, as well as numerous other materials. Cracks become legally relevant especially when they relate to the freedom from defects of buildings, movable items, or real estate.
Distinction from comparable phenomena
Not all visible surface changes are considered cracks. For example, hairline cracks (fine, harmless surface cracks) are to be distinguished from deep cracks affecting the structural framework. The legal assessment depends significantly on the type, extent, cause, and impact of the cracks.
Cracks and contract for work law
Definition of defect under the BGB
Within the scope of a contract for work (§§ 631 ff. BGB), cracks often constitute a defect. According to § 633 sec. 2 BGB, a defect exists if the work does not have the agreed quality. Unless cracks are expressly contractually agreed upon or customary, they are regularly relevant for acceptance.
Distinction from ordinary condition
Whether a crack qualifies as a defect depends on whether it impairs fitness for the contractually agreed use or reduces value. Minor, technically or age-related unavoidable hairline cracks may be tolerable and do not always constitute a defect.
Technical standards and cracks
Technical rulebooks (e.g. DIN standards) can be used to determine whether and to what extent cracks must be tolerated. Exceeding such threshold values generally leads to the assumption of a defect.
Cracks in tenancy law
Material defects in rental objects
In tenancy law (§§ 535 ff. BGB), a crack can constitute a material defect if it reduces the suitability of the rented object for its contractually intended use (§ 536 BGB). The decisive factor is whether the crack impairs usability or substantially deteriorates the property.
Examples from case law
Case law differentiates according to the location, size, and impact of cracks. Minor, merely visual cracks generally do not justify a rent reduction, whereas more serious cracks—especially those affecting the indoor climate or the building structure—regularly entitle the tenant to a rent reduction.
Cracks and real estate law
Acquisition and sale of real estate
When purchasing apartments, houses, or plots of land, cracks play a central role in the context of the law on material defects (§§ 434 ff. BGB). Buyers can assert claims for material defects if cracks were present at the time of risk transfer and no corresponding contractual exclusion of liability was agreed.
Disclosure obligations and liability
Sellers are obligated to disclose obvious significant cracks. Failure to disclose may result in claims for damages or rescission of the purchase contract if fraudulent concealment is present.
Building regulations law and public law aspects
Building supervisory significance of cracks
In public building law, cracks are always relevant if they can affect the structural stability, fire safety, or traffic safety of a building. Building supervisory authorities may order measures if cracks pose significant hazards.
Responsibility of the owner
Owners of buildings are obliged to ensure the safety of the property. If cracks pose risks to public safety or neighboring properties, the owner has an obligation to act and, where applicable, to carry out remedial work.
Warranty claims and cracks
Remediation and reimbursement of costs
If a crack qualifies as a defect, claims for rectification, substitute performance, self-performance, as well as reimbursement of costs (§§ 634, 637 BGB) exist. In individual cases, it is decisive whether the defect is insignificant and which remedial measures are technically and economically reasonable.
Limitation period
Warranty claims due to cracks are subject to the usual limitation periods in contract for work law (generally 5 years for buildings, § 634a sec. 1 no. 2 BGB) and in sales law (generally 2 years, § 438 BGB).
Burden of proof and expert reports
Identification and documentation
In case of dispute, proper documentation of cracks (e.g. through photos, measurement logs, expert opinions) is crucial. The burden of proof generally lies with the claimant, and determining the cause is significant for assigning responsibility.
Distinguishing pre-existing damage
For warranty claims, it must be proven that the crack already existed at acceptance or transfer. Later or age-related cracks are not the responsibility of the manufacturer or seller.
Special considerations and practical examples
Cracks in new buildings
In new buildings, cracks can appear shortly after completion. It must be assessed whether these are due to design or workmanship faults, unsuitable materials, or settlement phenomena.
Cracks in old buildings and used items
Age-typical cracking in old buildings usually does not constitute a defect, as long as it is characteristic of the structure and generally to be expected.
Legal consequences and possible claims for cracks
- Remedy of defects (subsequent performance): The contractor or seller is obligated to repair relevant cracks or replace the affected item.
- Reduction: The client may, under certain circumstances, reduce the remuneration or rent.
- Damages: If damage has been caused by attributable cracks, claims for damages are possible.
- Withdrawal: In the case of significant, irremediable cracks, withdrawal from the contract may be considered.
Conclusion
Cracks play an important role in both private and public law. The legal assessment depends on numerous factors, such as type, extent, cause, and impact of the cracks. They affect numerous grounds for claims under the German Civil Code as well as public building law. The enforcement of rights always requires a differentiated individual case assessment, including the review of technical standards. Documentation, investigation of the cause, and if necessary, involvement of experts are decisive for both the assertion and defense of claims due to cracks.
Frequently asked questions
Who is liable for cracks in a property after purchase?
In a real estate purchase, liability for cracks is generally governed by the purchase contract. Properties are often sold “as seen,” meaning the buyer accepts known and visible defects. For hidden defects, such as cracks that appear later or are concealed, the seller is generally only liable if they have fraudulently concealed them. Fraud requires that the seller knew about the cracks and failed to inform the buyer despite a duty to disclose. If the buyer discovers cracks after transfer, they must first check whether these defects were excluded in the contract (e.g. by a warranty exclusion) or whether there has been a lack of disclosure by the seller. If fraud can be proven, the buyer has a claim for subsequent performance, damages, or, under certain circumstances, rescission of the purchase contract.
What legal consequences can arise from the occurrence of new cracks during construction?
Cracks appearing during construction are considered a construction defect within the meaning of contract for work law (§§ 633 ff. BGB). The client may request subsequent performance (elimination of the defect) from the contractor. Only if subsequent performance fails do the client’s further rights, such as reduction of the contract price or withdrawal from the contract, arise. The occurrence of new cracks can also lead to a reversal of the burden of proof in terms of liability, requiring the contractor to prove that the cracks were not caused by their conduct. Comprehensive documentation of the construction phases and careful securing of evidence are therefore crucial.
Can a tenant claim a rent reduction due to cracks in the apartment?
Cracks in walls, ceilings, or floors that impair the usability of the rented property generally constitute a material defect under § 536 BGB. If this reduces living quality or safety, the tenant is entitled to a rent reduction from the time they become aware of the defect, regardless of whether the landlord is at fault. The amount of the reduction depends on the extent and location of the cracks and the degree of impairment caused. However, the tenant is required to promptly inform the landlord about the cracks and give them the opportunity to remedy the defect.
How must a developer inform about existing or potential cracks?
A developer is obliged to comprehensively inform the buyer of a new building or refurbished property about known defects and risks. This includes both existing or already observed cracks as well as circumstances that are likely to cause further cracks (e.g. settlement phenomena, material defects, faulty planning). Failure by the developer to provide such disclosure can result in claims by the buyer for remediation, damages, or challenging the contract due to fraudulent misrepresentation. Complete documentation and timely information are therefore legally essential for developers.
What deadlines apply to the assertion of claims for cracks?
Cracks which constitute a material defect are subject to statutory limitation periods. For buildings and associated works, the warranty period in accordance with § 634a sec. 1 no. 2 BGB is five years from acceptance of the work. If a material defect—such as cracks—is discovered within this period, the claim can be asserted. After this period expires, claims are generally excluded unless fraud has occurred—in which case the period is ten years. In rental agreements, defects must be reported without delay in order not to endanger rights to rent reduction or damages.
Who bears the burden of proof in disputes about the cause of cracks?
In case of dispute, it is generally the claimant who must prove that a defect exits and that it falls within the contractual partner’s sphere of responsibility. For construction defects occurring within the statutory warranty period, it is presumed in favor of the client that the defect (i.e., the cracks) existed upon acceptance of the work. The contractor must then prove that the cracks were subsequently caused by improper use or external influences. In the case of used properties or rental apartments, the claimant must show that the defect did not arise only after transfer or the start of the tenancy.
What role do expert opinions play in legal disputes involving cracks?
Expert opinions from construction experts play a decisive role in clarifying technical and causal questions regarding cracks. They help determine the cause, age, and severity of cracks and thus establish responsibility among parties. In legal disputes, expert opinions serve as evidence in court; their neutrality and factual accuracy are critical for successful legal enforcement. Court-appointed expert opinions carry particular weight compared to privately commissioned opinions.
