Property developer
A property developer is a company that produces residential and commercial properties for commercial distribution . An essential aspect of the property development activity is that the property developer provides the buyer with ownership of both the property (or the right to property ) and the building constructed on it .
The property developer builds with his own or financed money at his own risk. After the sale of a unit, according to the requirements of the legislature, in particular in the form of the Real Estate Agents and Builders Ordinance ( MaBV ) , he receives discounts from the buyer on services already provided (purchase of land, construction of the shell, etc.).
If, on the other hand, a “normal” building contractor acts as a general contractor or general contractor , he builds on a plot of land that already belongs to the client . Since in this case no real estate is transferred, the contract - in contrast to the developer contract - does not require notarial certification , but is usually only concluded in writing . The building contractor receives down payments from the customer for the construction work performed, which are based on the construction status.
Form of organization and economic factor
Property developers in Germany are often run in the form of a limited liability company, but sole proprietorships , limited partnerships or stock corporations can also be found. The majority of the property development companies operate in a segment of up to EUR 20.0 million in annual sales and are operated with a low staffing level. Few companies achieve much higher sales, but are mostly tied to a group ( construction company ) or close to the local authority (e.g. in municipal "hands").
Construction management
Construction is mostly carried out through the purchase and development of a piece of land. As part of the development, all construction services from the architect's planning to the official permits to construction are commissioned. In-house construction work is usually not performed. The developed residential units are being sold in full. The developer develops and builds in the storage area in order to sell the units before or during the construction process. In order-to-order construction, the property developer only becomes active once the purchase contract has been signed. The property developer's profit is the difference between the total costs for building the living space and the sales prices achieved.
The developer contract
From a legal point of view, the building contract is a mixture of a sales contract and a contract for work and services and is subject to the strict regulations of the Real Estate Agents and Builders Ordinance (MaBV). In particular, if the contract is concluded at a point in time at which the construction work has not yet been completed, the contract contains elements of a work contract. The MaBV regulates the down payments to be made according to the current building status (see building status report ). The property developer undertakes to erect the property in accordance with an agreed building description, to hand it over to the customer / buyer after completion and to provide him with ownership of the property.
The turnkey contract is because real estate is sold, a notary to notarize.
Since the developer is the only contractual partner of the customer, direct coordination between the customer and craftsmen and companies is not required and, on the other hand, only possible with the consent and cooperation of the developer.
The property developer is responsible to the purchaser for the proper execution of contractually assumed obligations and must ensure that all defects that occur during the construction period or within the warranty period are eliminated .
In addition to the conclusion of a property developer or building contract, it is also conceivable that a buyer acquires an already completed (e.g. old building) or even a half-finished property (extension house) from the property developer with a normal purchase agreement. In the latter case, the buyer takes over the completion at his own expense and risk.
Legal situation in Germany
The activity of the property developer is subject to the restrictions of Section 34c of the trade regulations and requires a permit. Compliance with the regulations from the broker and property developer ordinance is monitored by the annual subsequent creation of a MaBV report. In this, in particular, the earmarked use of the capital made available by individual buyers is presented. The buyer's funds are usually secured by a declaration of exemption from a bank. This contains a clear regulation for dealing with advance payments already made in the event of insolvency of the developer (repayment according to the actual construction status, completion of the project ...).
With effect from January 1, 2018, a property development contract is a separate type of contract for the construction or conversion of a house or a comparable structure, which also includes the obligation to transfer ownership of the property to the customer or to order or transfer a heritable building right ( § 650u BGB).
Final insurance
The reliability, quality and solvency of a property developer can be checked according to the following criteria before signing a contract:
- Obtaining a bank report
- Company history
- Are problematic projects of the developer known?
- Obtaining references e.g. B. through contact with previous buyers
- Viewing of reference objects
- General reputation of the company
- Quality assurance during construction (e.g. TÜV or DEKRA )
Property developer in Austria
Real estate agents , real estate managers and property developers are grouped under the heading of real estate trustee (common provision for the entry requirements, common representation of interests). The term developer is used differently in Austrian law:
- in the sense of the trade regulations (§ 117 Abs. 4 GewO)
- within the meaning of the Developer Contract Act (§ 1 Paragraph 1 BTVG) 1
- in the sense of the Salzburg housing subsidy (= subject subsidy) § 6 (1): non-profit building associations according to the WGG, building traders, real estate agents and property developers within the meaning of §§ 99, 117 and 149 GewO 1994
According to § 117 GewO (1994 as amended 2002 amendment, amended Federal Law Gazette 2008), the area of activity of the property developer is described in Paragraph 4: The organizational and commercial handling of construction projects
- New buildings and extensive renovations
- On your own or someone else's account
- Recovery of the building
A property developer in the sense of the GewO is someone who has a business license as a property developer, carries out building projects and is not a builder, master carpenter, etc. According to the GewO, a corresponding certificate of proficiency is required for the practice of the building construction trade.
Job description of the property developer
The job description of the property developer has the following basic structure that is undisputed in practice and teaching (five-pillar principle):
Client function
The property developer is the client or the client's direct representative. The builder is someone who prepares a structural system for his responsibility and his risk and takes or has the necessary measures taken.
- Bauwill is formed
- Project according to your own ideas
- The will to build arises originally
In the case of building projects on their own land and for their own account, the property developer is himself the builder. In the case of buildings on third-party land or for third-party account and at a third-party risk, the developer, as the construction supervisor, is not the client himself, but represents the client's interests as their direct representative and with full project responsibility.
Third party commitment
The developer acts in his own name, but is obliged to third parties for whom he builds. He sets his building measures in view of an existing or future contractual relationship with the user of the building project. He also runs projects for the purpose of exploiting the users of the project and enters into a direct relationship with the users.
Trusteeship
The property developer acts like a trustee. There is therefore no longer any freedom for the property developer to use the building money. If he works for a large number of buyers, he is obliged to optimize the construction project in technical, economic and legal terms - optimization obligation.
Overall responsibility
The property developer bears comprehensive, indivisible responsibility for the overall construction project. The activity of the developer as well as his responsibility for the realization of the building project in all aspects is to be regarded as comprehensive.
- He arranges the necessary planning work properly and on time
- He commissions the execution services
- He provides the financing, legal and economic custody
- He takes care of the legal security for future users
- He controls all construction matters in terms of legal, economic, cost and quality
- Ultimately, as a direct contractual partner, he is fully liable to his customer for all construction issues, including errors in the area of his client (possibility of recourse).
Concentration principle
The developer should concentrate on his own sphere of activity. The function of the property developer does not end with the completion and handover of the building to his clients, but rather extends beyond that: he has to ensure that the legal order is established and his client is given the agreed legal status and in particular, that the guarantee is properly processed. There is potential for conflict with simultaneous status as a construction contractor and / or building manager. The exploitation and marketing of the construction project itself does not cause any significant collision problems.
Services of the property developer
The property developer initiates the following activities or carries them out himself:
- Procurement of land including checking the project requirements
- Project development and development of the building and usage concept
- Planning phase of project development
- Project management
- Preparation for building
- Construction supervision
The services of the property developer can also be summarized as construction management - in organizational, commercial and macroeconomic terms.
The Developer Contract Act (BTVG)
The BTVG came into force on July 1st, 2008 in a comprehensive amendment. The aim of the BTVG is to protect consumers who purchase their property from a property developer before completion and who pay considerable funds in advance. At the same time, however, the BTVG also takes into account the interests of the property developer in that the pre-financing by the purchaser is basically still permitted. The BTVG must then be applied if the purchaser (consumer) is contractually obliged to pay more than EUR 150.00 per m² of usable living space to the developer or to a third party prior to the completion of the building and handover of the property to secure the establishment of the agreed legal status.
The BTVG is also to be applied if only the payments for real estate transfer tax, contract construction costs, community fees for development, to utility companies for the production of the corresponding inlets and outlets and, above all, direct payments to professionals specified by the property developer reach or exceed the total amount stated above . A property development contract (§ 2 (1)) is understood to mean a contract for the acquisition of property, condominium, building rights, inventory rights or any other right of use including leasing to buildings, apartments or business premises to be built or thoroughly renovated.
Content of the contract
The developer contract must be in accordance with Section 4 (1) BTVG contain the following points:
- The building , the apartment or the business premises including accessories (= the actual subject of the contract) as well as the parts of the overall system that can usually be used by the purchaser - dimensions, location and dedication are to be represented by plans and a description of the construction and equipment
- Note on danger zones: e.g. B. danger zones caused by torrents or avalanches, flood drainage areas, suspected land register, contaminated site atlas
- The price and the amounts to be paid by the buyer for special and additional services that are offered by the developer or have to be paid to professionals specified by the developer
- Due date of the purchaser's payments
- Latest delivery date of the actual subject of the contract and the completion of the entire system
- physical or mandatory encumbrances that the purchaser must assume
- Security for the purchaser (§ 7)
- the account of the property developer to which the purchaser has to make the payments in the case of a guarantee or insurance, information about the legal consequences associated with this
- Trustee, if one has to be appointed
- Liability retention to be granted to the purchaser (Section 4 (4) BTVG)
Community of builders
An alternative to buying from a property developer is a private community of builders who, in contrast to a property developer, have organizational goals other than financial profit.
literature
- Eckart Bueren: The regulation of special requests in the developer contract , NJW 31/2011, 2245
- Kallinger, Gartner, Stingl: property developers & project developers. Develop, renovate and sell real estate successfully . 5th updated edition. Manz'sche Verlags- und Universitätsbuchhandlung GmbH Vienna, 2008
- Peter Marcks: Real Estate Agents and Builders Ordinance (MaBV). Commentary , 8th edition, Munich 2009, Verlag CH Beck, ISBN 978-3-406-58404-6
- Hans-Egon Pause: Property developer purchase and building models , 5th edition, Munich 2011, Verlag CH Beck, ISBN 978-3-406-59702-2
- Weber / Kesselring / Hennig: The development of property developer law as well as architecture and engineering law in 2009 and 2010 , in: NJW 2010 (Issue 26), 1855 [following the corresponding article in NJW 2009, 3346]
- Weber / Heuer: The Development of Property Development Law in 2011 and 2012 , in: NJW 2013 (Issue 4), 209
- Werner / Pastor: The building process , 13th edition, Düsseldorf 2011, Werner-Verlag, ISBN 978-3-8041-5024-9
Web links
Individual evidence
- ↑ Art. 1 No. 25 of the law on the reform of building contract law, on the amendment of the liability for defects under commercial law, on the strengthening of civil procedural legal protection and on the automatic seal in the land register and ship register procedure of April 28, 2017 ( Federal Law Gazette I p. 969 , PDF)
- ↑ BT-Drs. 18/8486 : Justification for a draft law to reform building contract law and to change liability for defects under commercial law
