Fachgebiet
Lawyer for Construction Law
Putting building projects on a sound legal footing before delays turn into a dispute.
In construction law in particular, it is decisive for a project to run free of conflict that the legal aspects of the building project are planned in good time. Given the sums invested and the frequency of building defects (Pfusch am Bau, botched construction work) with responsibilities spread across many parties, building projects often have a contentious aftermath in lengthy construction disputes.
Services at a glance
- Contract review
- Contract negotiations
- Preserving evidence
HÖLLWARTH advises you at every stage of your building project – from reviewing the contract and negotiating it through to securing evidence.
Preserving evidence
In construction law, securing evidence (Beweissicherung) is often decisive – for example in cases of incorrect billing or of “Pfusch am Bau” (botched construction work). Only once a particular state of the building or of the defects has been documented in a way that holds up as evidence can rectification by another firm (Drittnachbesserung) (rectification by a firm other than the one originally commissioned) be arranged, or building be continued. Securing the evidence also ensures that arguments in your favour are not lost.
One way of securing evidence is to commission an expert to prepare a report for that purpose. Independent evidence proceedings initiated before the court (selbstständiges Beweisverfahren) are less likely to leave a private report open to being refuted by an opposing report. The firm advises on the various ways of securing evidence and settles on an approach that fits the situation at hand. It files the appropriate applications with the court. Where necessary, and if instructed accordingly, the expert’s site inspection is attended. Taking into account the question of who has to prove what in any later construction dispute, the evidence proceedings are accompanied by supplementary questions put in writing to the court-appointed expert. Alternatively, the firm has the expert summoned by the court and asked to comment further on the basis of prepared lists of questions.
Construction disputes
Construction disputes are usually disputes about building defects and are shaped by tactical considerations. What matters is calculating damages and the payment for rectification by a third firm correctly, or determining amounts of price reduction or compensation. Problems of proof in a construction dispute arise on the construction-management side, concerning the construction period and how it is determined against the background of an agreed contractual penalty. If the contractor is late in carrying out the works, the rights this gives the client have to be examined. Conversely, the client’s duties to cooperate, or obstruction of the contractor, may give rise to claims for an extension of the construction period and for damages.
The aim must be to anticipate any later taking of evidence by the court, ideally so that a lengthy construction dispute that follows is avoided altogether.
Häufige Fragen
Can I report building defects after handover?
Yes. For buildings, the warranty period is three years from handover. If the defect appears within the first six months, it is presumed to have existed at handover – after that, the burden of proof is on you. So report defects in writing and without delay; the period runs regardless of when you notice the defect.
What about a defect that only shows up later?
Yes. Defects that only come to light after acceptance are covered by the warranty as well – what matters is whether the defect was already inherent at handover. The three-year period does, however, run from handover, not from discovery. If the contractor fraudulently concealed the defect, longer periods apply. Document the date of discovery.
Can I assert defects even though I have accepted the works?
Yes. Taking over the works is not a waiver of warranty rights. The position is different only for defects that you knew about at handover and accepted without reservation. Always record visible defects expressly in the handover record – a reservation costs nothing and preserves your rights.
Does acceptance of the works matter legally?
Very much. On handover the contract price falls due, the warranty period starts to run and the risk passes to you. Above all, the burden of proof reverses after six months. Never let the handover inspection be rushed, and on larger projects bring in an expert.
Can I demand rectification?
Yes, and it comes first. The law sets out an order of remedies: you can first demand repair or replacement. Only if that is impossible, would be disproportionate for the contractor, is refused or is not carried out within a reasonable period do a price reduction or rescission are an option. Always set the deadline in writing.
Is a price reduction possible?
Yes, but only as a secondary remedy. A price reduction presupposes that repair is impossible, disproportionate or has failed. The reduction follows the ratio between the actual value and the value owed under the contract – not the cost of remedying the defect. For minor defects it is the only route, because rescission of the contract is then ruled out.
Can I withdraw from the contract?
Only where the defects are not minor. Rescission (Wandlung) is the strongest warranty remedy and only becomes an option once repair is impossible or has failed. Where the building has already been erected, unwinding the contract is difficult in practice, which is why a price reduction or damages are usually the more realistic solution.
Can I withhold the contract price?
Yes. As long as the works are defective you do not have to pay the contract price – experience shows that this is the most effective leverage. The amount withheld must, however, be in reasonable proportion to the defect. Withholding the entire payment because of a trivial defect is not permitted and puts you in default yourself.
Can I have the defects remedied by another firm?
Yes, after first setting a deadline. If the contractor lets a reasonable further period pass unused or refuses to carry out the repair, you can have the defects remedied by a third firm and claim the cost. Without first setting a deadline, you risk being left with that cost.
When do my claims become time-barred?
Warranty claims relating to buildings become time-barred three years after handover. Claims for damages are subject to a separate period: three years from knowledge of the damage and of the party who caused it, and thirty years as an absolute limit. Because the two periods run alongside each other and start at different points, limitation should be checked early – once a limitation period has run out, nothing can be done about it.
Is a Bauträger (property developer) liable for building defects?
Yes. Under a developer contract the Bauträger is your contractual partner and is liable to you for defects – regardless of which subcontractor actually did the building. The Bauträgervertragsgesetz (Property Developers’ Contracts Act) also provides for safeguards and for payment in instalments tied to the progress of the works. Never pay in advance without the security it provides for.
Can I also take action against the architect?
Yes. Architects and Ziviltechniker (chartered engineering consultants) owe defect-free planning and – where they are instructed accordingly – supervision of the works. They are liable for planning and supervision errors under the law of damages. Often several parties each bear a share, in which case joint and several liability becomes an option. Who has to answer for what is usually established by an expert report.
Can I claim damages for delay in construction?
Yes, if the contractor is responsible for the delay. Recoverable items include the additional cost of alternative accommodation, storage costs or lost rent. Many construction contracts also provide for a contractual penalty, which is payable without proof of any specific loss. Check the contract first – and put in writing, so you can prove it later, your demand for the completion date to be met.
Is it worth securing evidence before building starts?
Very often, yes. If the condition of neighbouring buildings is documented before work begins, it can later be established whether cracks really do come from the building site. Alongside private documentation there is the court procedure for securing evidence, which can be applied for even where no proceedings are pending. Without a baseline survey, such claims regularly fail on the evidence.