Builder security mortgage

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The builder security mortgage is a security mortgage in which the builder or building contractor who is obliged to make advance payments has the legal option of securing the payment risk of his remuneration ( work wage claim ) by entering a security mortgage on a property or the client's property- equivalent rights in the land register .

General

A building tradesman is obliged to make advance payments. He provides his services ( building materials , work performance and remuneration ), but receives his compensation only after completion of its work, thus with decrease in construction output ( § 641 para. 1 BGB ). If his client becomes insolvent (especially in the case of insolvency ), the building tradesman has made his preliminary work but no longer receives his remuneration ( bad debt loss ). He is also no longer able to “get back” his preliminary work because the built-in material has become an integral part of the property and has therefore become the property of the property owner. The landowner for his part (or the insolvency administrator) can therefore use or exploit the work of the builder without the builder having been paid. According to a survey by the Central Association of German Crafts in 2001, 39.2 percent of all businesses were affected by bad debts and 8.5 percent were at risk for their existence.

A possible security for the building tradesman would be appropriate advance payments ; however, these must be expressly agreed in the contract. The builders, such a contractual arrangement is usually not achieve because even at a tender the construction of contract terms by the client are prescribed. If the procurement and contract regulations for construction work, Part B (VOB / B) have been contractually agreed, the building contractor can demand advance payments in the amount of the value of the respective proven contractual services ( Section 16 (1) VOB / B). Often, however, the VOB / B is not agreed or the agreement is invalid due to a lack of form , so that the general provisions of the BGB must be used.

According to § 650f BGB, the builder can request the entry of a security mortgage on the property of the customer for his claims from the building contract , unless he has received any other security for his payment claim. The limitation period for this claim only begins with the request for security, not with the conclusion of the construction contract.

Legal issues

The building tradesman's claim to the granting of a security mortgage is generally directed against the purchaser of the work and assumes that he is also the owner of the property on which the work is to be performed. The Federal Court of Justice (BGH) has only recognized a breach of this principle in a case in which the customer was not also the owner of the property affected by the work when the order was placed. Such an exceptional case can be answered in the affirmative, for example, if the conditions of § 826 BGB exist in relation to the purchaser , for example if the purchaser acquires the property in fraudulent cooperation with the purchaser or in the knowledge that the purchaser intends to disadvantage the creditors. A claim against the managing director of a GmbH according to Section 311 (3) BGB may also be considered . An agreement from an economic point of view is usually not sufficient. The general principles of good faith also apply in the relationship between the building contractor and the property owner who is not the client ( Section 242 of the German Civil Code). The formal difference must not lead to depriving the builder of the security he is entitled to. Then the property owner must allow himself to be treated like a customer, at least in the area of ​​liability in rem, in accordance with Section 242 of the German Civil Code. The principles of good faith dictate that a fair balance of interests should be brought about, especially in cases in which unacceptable results would be achieved through a purely formal legal assessment.

The law says that the building tradesman can “request” the registration of a security mortgage. He is therefore not awarded the security mortgage by law, but has to contractually agree his legal claim or, if necessary, enforce it in court. This can take several months, maybe even years. Before that undue delays of the builders is protected by his rights shortly by way of injunction by the land registry flag can secure. The reservation only protects the builder against further later encumbrances , but not against the sale of the property.

Legal risks

The instrument of the building trades security mortgage involves legal risks . In particular, it only covers cases in which the client is also the owner of the property. The numerous cases in which the builder acts as a subcontractor for a general contractor are not recorded. This even applies if the general contractor is an independent legal person , but is still the economic property owner, but the above exceptional cases do not exist.

However, if the builder comes with its collateral mortgage to the course, the land registry as a rule by the rank foregoing items (for example, by the real estate financing already so heavily loaded building project) that the builder-securing mortgage may not be recoverable.

The federal states of Saxony and Thuringia therefore passed a legislative initiative in 2002 to improve security for building tradesmen.

Further legal regulations

The law for the acceleration of due payments, which came into force on May 1, 2000, introduced an advance payment regulation into the civil code ( § 632a BGB).

In addition, based on Section 650f of the German Civil Code ( BGB), which came into force in 1993 and was amended again on May 1, 2000, the builder can request a security in another form instead of a builder security mortgage . The security comprises the amount of the full anticipated remuneration claim as well as a surcharge for any ancillary claims amounting to 10% of the remuneration claim. The security deposit can be provided in the forms of § 232 BGB, in practice mainly security by bank guarantee or a credit insurer occurs, for which § 650f (2) BGB contains further regulations.

Section 650f (7) of the German Civil Code (BGB) stipulates that contractual provisions deviating from Section 650f (1–5) BGB are ineffective. However, builders' insurance according to § 650f BGBis excludedin thecases mentionedin § 650f para. 6, namely in the case of legal entities under public law as clients and for consumer building contracts according to § 650i BGB or property developer contracts according to § 650u BGB.

See also

Web links

Individual evidence

  1. ↑ a kind of general terms and conditions for the construction industry
  2. ↑ OLG Hamm , judgment of October 8, 2015, Az .: 21 U 71/15 = BauR 2016, 310
  3. ↑ BGH, judgment of December 18, 2014, Az .: VII ZR 139/13 = BGH NJW 2015, 552
  4. ↑ BGH NJW 2015, 552
  5. ↑ BGHZ 102, 95
  6. ↑ Georg Hopmann, The effect of the sale of the building site by the purchaser of a building on the building tradesman's claim under Section 648 of the German Civil Code (BGB) , secured by a reservation on the site , in: ArchBR 30, 1907, 234