Otus11
2016-05-18 10:31:17
- #1
Yes, as the construction expert wrote, we are groping in the dark without a contract... That is, if you do not shy away from effort and costs, anyway a case for legal advice and not for a forum.
And handover (= actual transfer of possession, e.g. handing over keys) and acceptance (= legal approval of the completed work) are also not the same.
If now the "BT" voluntarily offered the "handover" / move-in date early by e-mail (!), that is initially only a unilateral amendment offer of the contract concluded by both parties (which provided for completion 2 months later), which without your consent, more precisely: without a contract amendment, is not that simple. Keyword: requirement of written form for contract amendment; e-mail is not written form... (implied consent is also not enough, not even "Great, we save rent, already terminated the apartment on a whim..."). What does the contract say about this, which still applies without a (formally) effective amendment?
Furthermore, the presumably greatest defect (= alleged thermal bridge) is in the common property, not in the separate property. When will the common property be accepted? By whom? (certainly not by the expert, who can at most recommend the acceptance declaration (!) -> to the person responsible for this under condominium law - which is typically the community of apartment owners (here it is disputed when this exists before handover, but then who selects the expert? And when?), possibly represented by the condominium manager.
Moreover: Only the contractor can demand acceptance; you, on the other hand - depending on the contract - have a claim to performance / completion and ideally by a date X, after which delay may occur or, if there is no date, delay must first be triggered by reminder and unsuccessful setting of a deadline. And only then may there be a claim for damages as a consequence of delay, but see my critical remarks above.
The counter-right to the acceptance demand of the contractor is the buyer's refusal to accept in case of serious defects. Without concrete delay no compensation for a concrete delay (consequence) damage.
Anyway: The most important thing is that in an acceptance (declaration) in the protocol, the rights to remedy defects continue to be reserved!
Otherwise, the legal consequence of § 640 II Construction Code applies, which leads to the loss of defect rights despite knowledge of defects in case of unconditional acceptance (despite performance of defects in the protocol!).
So familiarize yourselves with acceptance and handover in construction law, presumably according to the Construction Code (VOB/B is different!).
And handover (= actual transfer of possession, e.g. handing over keys) and acceptance (= legal approval of the completed work) are also not the same.
If now the "BT" voluntarily offered the "handover" / move-in date early by e-mail (!), that is initially only a unilateral amendment offer of the contract concluded by both parties (which provided for completion 2 months later), which without your consent, more precisely: without a contract amendment, is not that simple. Keyword: requirement of written form for contract amendment; e-mail is not written form... (implied consent is also not enough, not even "Great, we save rent, already terminated the apartment on a whim..."). What does the contract say about this, which still applies without a (formally) effective amendment?
Furthermore, the presumably greatest defect (= alleged thermal bridge) is in the common property, not in the separate property. When will the common property be accepted? By whom? (certainly not by the expert, who can at most recommend the acceptance declaration (!) -> to the person responsible for this under condominium law - which is typically the community of apartment owners (here it is disputed when this exists before handover, but then who selects the expert? And when?), possibly represented by the condominium manager.
Moreover: Only the contractor can demand acceptance; you, on the other hand - depending on the contract - have a claim to performance / completion and ideally by a date X, after which delay may occur or, if there is no date, delay must first be triggered by reminder and unsuccessful setting of a deadline. And only then may there be a claim for damages as a consequence of delay, but see my critical remarks above.
The counter-right to the acceptance demand of the contractor is the buyer's refusal to accept in case of serious defects. Without concrete delay no compensation for a concrete delay (consequence) damage.
Anyway: The most important thing is that in an acceptance (declaration) in the protocol, the rights to remedy defects continue to be reserved!
Otherwise, the legal consequence of § 640 II Construction Code applies, which leads to the loss of defect rights despite knowledge of defects in case of unconditional acceptance (despite performance of defects in the protocol!).
So familiarize yourselves with acceptance and handover in construction law, presumably according to the Construction Code (VOB/B is different!).