Lack of construction

A construction defect is the deviation of the actual condition of a building from the owed target condition.

Material defect

definition

The construction defect is the term often used for the material defect in construction contracts .

In the case of BGB contracts, the building is free from material defects if it has the agreed quality ( Section 633 (2) sentence 1 BGB ), which is usually included in a description of services and in plans.

Unless the quality has been agreed, the work is free from material defects,

if it is required by the contract, otherwise
is suitable for normal use and has a quality that is customary for works of the same type and which the customer / client can expect according to the type of work ( § 633 Para. 2 S. 2 BGB ).

Since the reform of the law of obligations that came into force on January 1, 2002 , the definition of a construction defect or a material defect has been the same as that of the (also newly defined) material defect in sales contracts. The previously used terms of suitability for normal or contractually required use and the guaranteed property no longer exist. In particular, the guaranteed property with its special legal consequences has ceased to exist without replacement.

In the case of VOB contracts, the structure must also comply with the recognized rules of technology ( Section 13 No. 1 sentence 2 VOB / B ).

Since the definition is primarily based on the agreed quality , problems that can hardly be solved can arise if the agreement is contradictory or faulty, e.g. B. the description of services does not match the plans or these parts of the contract are contradicting themselves, if the description of services or the plans provide details that are actually not intended by any party and are objectively regarded as incorrect or if the description of services and plans do not comply with the recognized rules of technology to match.

Relevant point in time

The decisive point in time for the existence of a construction defect is the point in time of acceptance ( Section 633 (1) BGB , Section 13 No. 1 sentence 1 VOB / B ), which also triggers the transfer of risk ( Section 644 (1) BGB ). The structure must therefore be free of defects at this point in time.

Defects that occur after acceptance during the warranty period (more precisely today: limitation period for claims for defects ) are usually the result of a defective or non-contractual execution, so that the construction defect was already present at the time of acceptance, even if it was not yet externally visible . The defect can, however, also have been caused by later events and is then not a construction or material defect. In individual cases this can be difficult to differentiate, e.g. For example, the storm damage to the roof may have been caused solely by gale force gusts, but it can also be due to the fact that the roof tiles were not fastened properly and therefore inadequate.

In the case of construction defects that occur before acceptance, the client can demand that the defective service be replaced by a service free of defects ( Section 4 (7) VOB / B ).

Exposition

According to the so-called symptom jurisprudence , it is sufficient if the deficiency is sensually perceived and its external appearance is described. This means that the building owner does not have to state the cause of the defect either in out-of-court letters or in written pleadings with which he asserts his claims.

Burden of proof

The contractor must prove that his work is free of defects until acceptance . From the time of acceptance, the client (builder) must explain in the event of a dispute (so-called burden of proof ) that there is a construction defect.

Expectations

In the event of a construction defect, the customer has the right to have the defect rectified. The contractor must be given the opportunity to remedy the defect. The contractor can refuse the removal in the event of impossibility , disproportionality or unreasonableness. In this case, the client is entitled to a reduction . Only if the contractor unjustifiably refuses to remedy the defect, the client can remedy the defect himself or have it performed as part of the substitute performance. The objection of disproportionality is not permissible if a property was guaranteed or gross negligence or intent was present.

Consequences of defects

Unresolved construction defects generally lead to a reduction in the value of the structure. Serious construction defects - such as faulty thermal insulation of the building - can also lead to health problems for the users, e.g. B. by the appearance of molds or their spores.

A distinction is made between:

Defect damage : a defect that represents damage to a building ,

Consequential damage caused by defects: this arises from further damage to the client's assets.