Cancellation of house contract prefabricated house construction - claims for damages?

Hello,

this topic has actually been discussed many times before, but we have not yet found any conclusive remarks, i.e. the forum members who wanted to cancel or have canceled unfortunately have not reported further on how they ultimately reached an agreement or understanding with the respective home provider. Therefore, we would generally appreciate feedback on how things ultimately turned out for those affected and also hope for advice with possible solutions.

A brief overview of our case:
We had a sales meeting in which the show home was presented to us and the rough framework and our ideas for building a prefabricated house were outlined.
At the second sales meeting a week later, we were verbally assured that the prefabricated house provider had various plots of land available in the area where we wanted to build, and later in the conversation we were then presented with an offer for the house construction (based on our information from the first sales meeting) and this was discussed before signing, in which this plot of land was included in addition to the costs for the house.

Since we did not have any land and it all sounded good, we let ourselves be “blindsided” by the sales consultant and, naive as we were and as we now know, signed a house contract. previously (as already described in several other cases here in the forum and of course only orally) that it was merely a preliminary contract and the company only wanted legal security so that we could not build the plot of land they offer us after signing the contract with another provider. At no time was it mentioned that the provider has no land!
In this conversation, the sales consultant also assured us that we could withdraw from this contract free of charge at any time if we did not have land or the financing did not materialize (as also described in several other cases here in the forum and of course only orally).
When I asked where this was stated in the terms and conditions, he referred me to §6 – Construction and Delivery Conditions, which states that the company is only obliged to perform the services once the builder has fulfilled all his obligations (such as obtaining a building permit). He then said that this clause also implied that we could withdraw at any time if any of the above-mentioned cases occurred.
However, to date we have neither land nor financing. Contrary to the misleading statements of the consultant, the provider of course has no land. We were merely shown plots of land from real estate portals that we had already seen ourselves and which did not meet our expectations.

Now my actual question:
This seems to be a common trick in the industry (actually I would say misrepresentation of facts, but since it was only mentioned orally in the sales conversation, unfortunately I cannot prove anything) and one should be able to take action against it. Do we have any chances to get out of this contract without claims for damages?
And if not, can the provider insist on the 10% of the stated costs mentioned in the terms and conditions here? According to §648, it would only be “5 percent,” right? Apart from some phone calls with the sales consultant and the drawing of the house in the construction plan on a possible plot apparently carried out by an architect, no other services have been provided by the provider.

We initially wanted to use the possibilities of the forum and the experiences of the community before ultimately consulting a lawyer. Please do not write answers referring to our naivety and gullibility, we know ourselves that we really messed up here :-(

Thank you in advance for your answers!

really hair-raising... don't even know where to start

At no time was it mentioned that the provider does not have any plots of land!

Of course, contrary to the misleading statements of the advisor, the provider does not have any plots. We were only shown plots from real estate portals that we had already seen ourselves and that did not meet our expectations.

well... the developer did have plots, just not the ones you liked...

As of today, however, we have neither a plot nor financing in place.

Excuse me, you don’t sign a contract and then take care of financing? Then you must really be confident!


Basically, what good are experience reports to you? Go to a lawyer and have everything checked. Don’t think it will be successful

First of all, thank you for the feedback!

well... the developer did have plots, just not the ones you liked....

On the one hand, I forgot to mention an important word in my explanation about the plot: The sales consultant already suggested to us in the first meeting that the company had own plots, namely in the villages for which we found nothing on the internet, and emphasized again in the second meeting that the plots would not be a problem. On the other hand, it was never mentioned in this conversation that they only use real estate portals, otherwise we wouldn't have even considered it. Because to look there you don't have to sign a contract...

Excuse me, one doesn't sign a contract and then take care of financing? Then one must really be sure of oneself!

I have to say, we had of course consulted in advance about financing a house, with the result that there would probably be no problems here. But without a suitable plot, we can't build a house, and without a house we don't need money. So there is no financing yet.

First of all, thanks for the feedback!



On the one hand, I forgot a crucial word in my explanation about the property: The sales consultant already suggested to us in the first conversation that the company had own properties, namely in the towns for which we found nothing on the internet, and emphasized again in the second conversation that the properties would not be a problem. On the other hand, it never came up in that conversation that they only use real estate portals, otherwise we wouldn't have engaged at all. Because you don’t have to sign a contract to look there...

I have to say, we had of course gotten advice regarding the financing of a house in advance, with the result that there probably wouldn’t be any problems here. But without a suitable property we can’t build a house, and without a house we don’t need money. That’s why there is no financing yet.

sorry, I’m not much of a lawyer, but it’s he-said-she-said... if you don’t have anything in writing about the properties, a consultation record or similar...

I mean, they have the construction contract...

And if not, can the provider insist here on the 10% of the stated costs mentioned in the terms and conditions? According to §648, it would only be "5 percent"?

Caution...

§ 648 sentence 3 Construction Code states:

"It is presumed that the contractor is entitled to 5 percent of the agreed remuneration attributable to the part of the work not yet performed."

This is a legal, rebuttable presumption regarding the amount of damages for both parties. If the contractor can demonstrate and prove 10%, 20%, or 50% damage, then these would also be granted to them. 10% as a wild guess from the contractor as a wishful demand may work, but it doesn't have to.

§ 648 Construction Code applies only to the contract for work. There is legally no such thing as a "house contract". Depending on the constellation/contract, however, it could also be a "building contract with a developer" (purchase of land with house construction) (which would have to be notarized, so this is rather unlikely).

More important are the different legal consequences between
** ordinary termination § 648 Construction Code (payment) and
** termination for cause § 648a Construction Code (no payment).

It would therefore be considerably wiser to rely on the latter...
But as always with lawyers, "it depends" (contract, burden of proof, etc.).

So save yourself the time here, budget around >1,000 EUR for a specialist lawyer for construction and architectural law, treat this as a learning expense and arrange an appointment there. The consumer advice center with construction counseling can also be a good point of contact.

Your own time and mental effort for the upcoming course is of course invaluable in money terms.

Thanks again for the feedback!

More important, however, are the different legal consequences between
** ordinary termination § 648 Building Code (payment) and
** termination for good cause § 648a Building Code (no payment).

It would therefore be much wiser to rely on the latter...
But as always with lawyers, it "depends" (contract, burden of proof, etc.).

I have also already read through §648a (5) Building Code, but what is considered good cause?

This ruling will probably not come into play in our case, will it?

So save yourself the time here, plan around >1,000 EUR for a specialist lawyer in construction and architectural law, write this off as a learning expense and schedule an appointment there. The consumer advice center with construction consulting can also be a good point of contact.

Of course, your own time and nerve cost for the upcoming course is incalculable in money.

It is undisputed and by now planned that I definitely have to pay for this as a learning expense. However, I am uncertain whether there is any prospect of success in involving a lawyer if I want to reduce the damages claims entirely (which is rather unrealistic) or at least partially. I fear that in addition to the full claims for damages, I will also have to bear the lawyer's fees.

So far, I have not yet written a termination notice nor spoken with the sales advisor/customer service of the company about my intention. Should I do this only after consulting with the specialist lawyer, or would an attempt to clarify in advance be advisable or even something to be avoided?

Thank you very much.