Construction law question - specification of a regional construction company in the land contract

Hello dear experts in building law!

Assuming it were like this:

The property contract contained the following paragraph:

"The parties agree that individual development shall be carried out by involving [REGIONAL ANSÄSSIGER] architects, engineers, and craft companies. This is intended to ensure that the residential area is not developed according to prefabricated standard plans of commercial providers. It is also intended to promote the regional small and medium-sized construction industry."

Nothing corresponding was entered in the land register.

Construction is now to be carried out with a local architect. The home builder is 230 km away and builds houses from Munich to Frankfurt, so not throughout Germany. Local craftsmen are at least planned for the basement, exterior facilities, as well as for wall and floor coverings. A local civil engineer from the Bauherren-Schutzbund is also to take over building supervision.

Questions:

1) Effectiveness of the paragraph

a) The paragraph is ineffective. Once the buyer is registered in the land register, it does not matter what was stated in the purchase contract.
b) The paragraph applies; in case of doubt, the seller could assert a right to repurchase the property.
c) It is unclear whether the paragraph is effective.

2) Condition fulfilled?

a) The conditions are fulfilled because parts of the work are carried out by local trades.
b) The condition is not fulfilled because the majority of the work is performed by a company that, being 230 km away, does not fall under the term "[Regional ansässig]."
c) It is unclear whether the condition is fulfilled.

Thank you very much for the answers!

Answers:

1: c
2: c

Apart from the fact that the clause is outrageous, it is probably anticompetitive and likely in violation of European law.

If in doubt, you should seek legal advice.

Assuming that it would be antitrust illegal, he would then gain nothing from it. ;) And any possible violation of European law does not help here either. :)

The information is kept very brief. Furthermore, the answers are already provided, so a discussion is probably not intended. Thus, basically, no statement can be made, so nothing can be said about it.

Basically, scenarios would also be imaginable where only craftsmen whose first name is "Thorsten" are allowed to build. ;)

Anyone who wants to read the relevant pages from the purchase contract should send me their email address via private message, then I can send them a pdf file (1.4 MB).

A repurchase right is defined in the contract, but only with regard to the construction obligation within 2 years. The mentioned paragraph is independent of that.

By the way, a lawyer commented on the topic as follows (not word for word, but almost):

The clause violates legal norms in several respects and is invalid.

According to Art. 10 § 3 MRVG (prohibition of tying), the sale of a property may not be made dependent on the commissioning of a specific architect (or structural engineer). The courts interpret this clause very broadly, i.e., any restriction on the choice of an architect is invalid.

Although this regulation does not apply to craftsmen, the European provisions on the freedom of goods and services movement are affected for them. In addition, this regulation violates competition law and antitrust law.

Furthermore, the term “regional” is of course not defined and therefore ambiguities mean that your contract partner cannot derive any rights from this clause.

Thus, this regulation is a flagrant violation of free competition.

We will now commission the construction company located 230 kilometers away and hope that the GmbH that does not sell the properties will not start a legal dispute. As said, we also have regionally based engineers, engineers, and craftsmen on board, only some involved companies are between 100–230 km away (none of them work nationwide, so they are still regional). And the legal situation for the mentioned paragraph also seems more than shaky.

toitoitoi