Defect rights in the work contract

I imagine the reversal of a construction project is difficult. The house is there and you withdraw from the purchase contract due to defects, and the prefab house manufacturer then comes to take back their house, or how do you imagine that?
It is obvious and is also stated in the Building Code that the contractor must first try to remedy their defect. The reduction of payment is often customary in the case of cosmetic defects if defect-free production would be "disproportionate" (for example, a scratch on the €5000 front door that can be seen from a distance of 1 meter in sunlight if you look closely). The amount of compensation for cosmetic defects is determined according to a list and is totally ridiculous. For the mentioned scratch on the €5000 door, there might be €100 returned.

With your clause here, it would be important that you also have some money unpaid at the final acceptance of the house, so that you can withhold something at all.

Switching from the Building Code to the VOB with a provider is hopeless, by the way. They know the Building Code; they won’t switch to another system just for one customer. Nobody knows that system, it automatically causes trouble.

A lawyer might be able to tell you what the clause legally means.

Hello Payday,

thank you for your reply. Yes, that’s true. Returning a house will indeed be difficult.

We have negotiated 5% of the gross construction sum as the final payment after joint handover. So far, we are quite happy with that.

It is also true that switching to VOB is not feasible, which is unfortunate but understandable.

Well then, we’ll dive into the house-building adventure. I will report here in the relevant subforums on how it goes. So far, we are really very satisfied with the support and negotiations at Kern-Haus!

Regards,
Hildebub

5% AFTER handover of the house is good and reasonable! Anyone who offers something like this usually also has "nothing" to hide, after all, they want this money as well. 5% of €200,000 is €10,000, a lot of money for a few possible cosmetic defects.

whether your clause is really okay like this I can't tell you. maybe someone with better legal experience can tell you more about it.

The purchaser's rights concerning defects are limited to subsequent performance according to §635 of the Construction Code (defect rectification or reconstruction at the contractor's choice). If subsequent performance fails, the purchaser is entitled to a reduction (lowering of the remuneration). The rescission of the construction project due to defective performance is expressly excluded."

According to the AGB law (law on general terms and conditions), this is clearly invalid, 309 no. 8 b) bb) Construction Code. For individual contracts, i.e. freely negotiated contracts, § 639 Construction Code also sets limits.

As a result, three out of four warranty rights under § 634 Construction Code are cut off from you, namely:
- Self-performance
- Rescission
- Damages
Only subsequent performance remains (the contractor always has the choice of what to offer, § 635 I Construction Code).

You do not receive any compensation for this cut-off of rights, hence it is an unreasonable disadvantage in (AGB).

To illustrate, a case where this becomes clear:
For example, windows are leaking, the parquet in the living room (done in self-performance) warps, swells… (= damage in money).
The contractor dutifully offers subsequent performance = windows are now tight. The parquet continues to rot… And (extrajudicial) attorney costs are also not reimbursed, as this would be damages, not subsequent performance...

Invalid does not initially mean anything. It depends on how the contract is actually lived in practice. However, in court the contractor / general contractor does not have good chances if he relies on it.

By the way: Why unfortunately not a VOB/B contract? The Federal Court of Justice jurisprudence interprets it anyway as a construction code work contract, e.g. to extend the wall warranty from 4 years under VOB to 5 years under the Construction Code…

Hello Otus11,

Thank you for your explanations. Based on the example, the possible significance became clear to me. We are trying to extend the contract accordingly to include the rights of self-performance, withdrawal, and damages. However, I suspect we will hit a brick wall there.

I also noticed something in the contract that I don’t find so great. Could you give me your opinion on that?
We have to provide a financing confirmation up to 3 weeks before the start of construction. So far, so good. However, the clause ends with the sentence: "Bei Nachweis der rechtskräftigen Forderungsfeststellung muss Kern-Haus ein unmittelbarer Zahlungsanspruch gegen die die Finanzierung bestätigende Bank eingeräumt sein." Basically, I do not want the contractor to have direct claims against my bank—or am I seeing this incorrectly?

One more thing: We have defined a contractual construction period of 10 months with the usual clauses. In addition, there is a delay compensation of 0.15% of the gross construction sum per day of delay, but capped at a maximum of 1.5%. Is that okay or clearly too little?

Sorry for the many questions... and thanks a lot in advance for your help.

Regards,
Hildebub

The Baugesetzbuch is better than the VOB, right?

Regarding clauses that are ineffective anyway, I wouldn’t negotiate too much. Ignore them. If it makes you feel better, you should commission a specialist lawyer to review it anyway.

The delay compensation was limited to 5% of the contract sum in our case. So I find 1.5% somehow low. We can only assess how much 0.15% is if we know the gross construction sum .

Our neighbors built with Kern-Haus. The house is still standing and they live in it !