Developer does not want to offset lump-sum damages with installments

Hello everyone,

In December 2017, we signed a builder contract for a turnkey semi-detached house with land. Completion was planned for December 2018. We set an extension of one month and received confirmation that we are entitled to the contractually agreed lump-sum damages of €60 per day since the beginning of January 2019.

Now it is mid-July 2020 and the construction is not finished, the builder is not insolvent and is financed through a financial service provider. Of 7 installments, 3 are still outstanding.
As lump-sum damages, more than €30,000 have accumulated, but the builder refuses to offset this against special requests and insists on full payment of all installments. When the construction is finished, they would reimburse the damages either by direct payment or through the guarantee (which is only €25,000). However, we suspect that we will never see the amount and that the builder will immediately file for insolvency after receiving all installments.
To date, we still have €60,000 "open" which the builder would receive with the last 3 installments, if he had completed regularly within 2018.

Does anyone know such cases and can recommend a course of action?
We believe that as soon as we do not pay an installment, the builder threatens insolvency.

The problem is that he is currently not continuing construction, correct?

Problem is that he is currently not continuing construction, right?

No, construction is slowly progressing. Construction started in April 2018. In October 2018 there was a construction stop because the craftsmen (bricklayers) were not paid. Then it continued from April 2019 until November 2019. Then another construction stop due to flimsy reasons (probably no money). In April 2020 it continued and so far it looks like completion in August, if all craftsmen are paid and they get it organized properly... So far we have paid all installments in full to prevent further stops.

That will be a legal issue. Offset possible or not. Does your contract say anything? How does the compensation come about?

That will be a legal issue. Is set-off possible or not. Does your contract say anything? How is the compensation established?

The flat-rate compensation results from the delay of now 1.5 years and is fixed in the contract at €60 per day of delay. From the environment of the developer, it is said that before paying compensation to all buyers, they would rather shut the business down. With another GmbH from the group of companies, which only built on third-party land and lost the contract here due to several construction stoppages (termination by landowners), the GmbH was sold to a company liquidator, renamed (+ appointed a new managing director) and has now filed for insolvency. The registered office of the sold and re-registered GmbH did not exist (I personally checked).

As a supplement: The developer acknowledged the damages compensation when setting the grace period and already requested at the 2nd installment not to reduce the installments in order to avoid construction delays (in hindsight, this is of course just ridiculous).

I was only able to edit my last post once.