Occupancy

from Wikipedia, the free encyclopedia

In the construction industry , it is ready to move into when an apartment can be inhabited permanently without endangering the safety and health of its residents . It must, therefore, doors , windows , electricity , light and water and a functioning heating , cooking facilities , sanitary facilities ( bath , toilet ) and safe access to be completed. The readiness for occupancy concerns both new and completely renovated buildings .

General

A building or apartment is to be considered ready for occupancy when construction has progressed so far that future residents can be expected to move into the building or apartment. Regulatory approval to obtain the building or dwelling ( final acceptance certificate of the building authority ) is not relevant to the terms skill. Likewise, a unilateral declaration by the seller about the readiness for occupancy that is not in accordance with the facts is not sufficient. Under civil law, ready-to-move-in is generally understood to mean that the building must have progressed so far that future residents can be expected to move into it. The residential building must be able to be used in its function as a residential building. Therefore, all the trades required for this would have to be completed. Obviously, readiness for occupancy has nothing to do with acceptance, completion or fulfillment, regardless of whether the term readiness for occupancy is classified under public or civil law.

Legal issues

The Assessment Act (BewG) defines undeveloped land as land “on which there are no usable buildings . The usability begins at the time of availability. Buildings are to be regarded as ready for occupancy if the future residents or other users can be expected to use them; the acceptance by the building supervisory authority is not decisive ”( § 178 BewG). According to Section 3 (2) No. 2 MaBV , 12% of the purchase price is due for residential properties that are not yet completed when they are ready for occupancy “and step by step against handover”. The law , however, avoids explaining the concept of readiness for occupancy in more detail, so that it is an indefinite legal concept . In land purchase contracts for buildings still to be built, the due date of the purchase price is usually made dependent on the availability, purchase price installments depend on the progress of construction . In individual cases it may be unclear at what stage of construction should be ready for occupancy. That is why the question of readiness for occupancy has long been preoccupied by case law , which often tries to determine with negative readings when readiness for occupancy is not available.

Criteria of readiness for occupancy in case law

A building or an apartment is ready to move into, according to a ruling by the Higher Regional Court of Hamm in November 1994, if construction has progressed so far that future tenants or other residents can be expected to move into the building or apartment. When this time is present, is to be judged according to the prevailing opinion. In order to be ready for occupancy, it is therefore necessary that the building can functionally be used as a residential building ; this means that all the trades necessary for the occupancy of the property must be completed. For the affirmation of the ready-to-move-in, the construction of the garage and the production of the outdoor facilities are not necessary, because an apartment can be inhabited even if the prefabricated garage belonging to it has not yet been erected and the outdoor facilities have not yet been completed. For the Federal Court of Justice (BGH) the fact that the buyer has moved into the apartment does not play a role in the legally clarified question of whether a condominium is ready to move into . For the Federal Court of Justice, ready-to-move-in includes the establishment of the usual access to the building object to be established in accordance with the contractual agreement, because the access is a central element for the purchase. The entire house is not ready for occupancy if a completely closed apartment is not reasonably accessible. The OLG Hamm had decided in May 2007 that the readiness for occupancy presupposed that an apartment could be used at that time according to the use stipulated by the contract, which for example includes the completion of the stairwell and the thermal insulation plaster. Other apartments would have to be completed so that their walls are plastered, the screed laid and they are provided with an entrance door, so that only a tolerable amount of construction noise and dirt can enter the stairwell from these apartments . According to common parlance, the BGH does not believe that the parties wanted an individual apartment to be ready for occupancy in the case of a construction obligation with a residential complex .

meaning

The determination of the availability of occupancy is particularly important in the area of housing subsidies . An apartment for which public funds have been approved before it is ready for occupancy is deemed to be publicly funded according to Section 13 (1) of the Housing Binding Act from the point in time at which the client has received the notification of the approval of public funds . Availability also plays a role in tax law. In Section 7 of the Income Tax Act, the start of depreciation is made dependent on the time of completion. A residential building is completed when it is ready to move into. After listing the individual construction phases, the MaBV assumes that the sanitary area is ready for occupancy after the tiling work , but before the facade work has been completed. Furthermore, the readiness for occupancy is relevant for determining the year of construction .

Individual evidence

  1. ↑ Manfred Blank, developer contract , 2002, recital 228
  2. ↑ Wolfgang Köble / Herbert Grziwotz, Legal Handbook Real Estate , Volume I, Subject 12, 2003, marginal note 110
  3. ↑ Klaus R. Wagner, The ready-to-move "rate" in the developer contract , in: BauR 2004, 569
  4. ↑ OLG Hamm, judgment of November 2, 1994, Az .: 21 W 16/92
  5. ↑ a b BGH, judgment of April 15, 2004, Az .: VII ZR 397/02
  6. ↑ OLG Hamm, judgment of May 31, 2007, Az .: 24 U 150/04
  7. ↑ BGH, decision of October 10, 2013, Az .: VII ZR 269/12
  8. ↑ Year of construction - 6 results - Enzyclo. Retrieved March 21, 2018 .