blubbernase
2022-02-14 08:30:53
- #1
Just found on the internet:
The Higher Regional Court of Koblenz has imposed a fine of 60,000 euros on one of the largest German prefabricated house providers, DFH Haus GmbH.
February 8, 2022
The company had violated a final injunction in six cases and wrongfully demanded financial security from consumers. Due to these violations, the Bauherren-Schutzbund e.V. applied for the imposition of the fine.
The Higher Regional Court of Koblenz states in its decision of 5.1.2022 (2 W 427/21) that DFH Haus violated a final court ruling from 03/02/2017 (2 U 296/16) six times. This contained a cease-and-desist obligation against 14 consumer-unfriendly and unlawful clauses that the prefabricated house provider had included in its contracts. Among other things, homebuilders were to commit to irrevocably assigning their full loan disbursement claims as security to the company before the start of construction. Regarding this, the Higher Regional Court of Koblenz ruled in 2017: "The entrepreneur is granted immediate and unrestricted access to the security at any time, regardless of the contractual conformity and freedom from defects of his work services. […] The (private) homebuilder must be protected from such immediate access to the security […]" Therefore, the court prohibited DFH Haus from using these or equivalent clauses in construction contracts with consumers.
DFH Haus then changed its contracts and waived the court-prohibited clauses. Instead of the ineffective assignment clause, the contracts now provided that the homebuilder must provide a surety bank guarantee covering 20 percent of the total construction price. After the contract was concluded, DFH Haus approached the consumers and, as an alternative to providing the bank guarantee, offered the conclusion of an additional agreement pre-formulated by DFH Haus, which again included the irrevocable assignment of the loan disbursement claims. According to the Higher Regional Court’s reasoning, with this procedure the company used a clause that was equivalent in content to the assignment clause prohibited by the court’s judgment of 03/02/2017. Furthermore, the court clarifies that the subsequent additional agreement also (of course) constitutes general terms and conditions of DFH Haus. Due to the six specific cases identified by the Bauherren-Schutzbund, DFH Haus therefore violated the cease-and-desist obligation from the judgment of 03/02/2017 and must pay a fine of 10,000.00 EUR per violation to the state treasury.
Wendelin Monz, authorized board member and trusted lawyer of the Bauherren-Schutzbund, points to the high consumer protection risk of this optional additional agreement: "If consumers choose the questionable path of entering into such an additional agreement—for example, because by signing the pre-formulated assignment declaration they supposedly have less effort and do not need to arrange an additional bank guarantee—this carries a high risk. They massively restrict their ability to act towards the construction company in the event of difficulties during the construction process. If a dispute arises, the homebuilder initially does not have access to the funds from their own loan. Commissioning another company for defect remediation or continuation of construction then often fails due to a lack of freely available financial resources—while the homebuilder frequently also has to pay commitment interest at the same time. With the decision of 05.01.2022, we have clarity that DFH Haus cannot circumvent the cease-and-desist obligation from the judgment of 03/02/2017 by means of subsequent agreements; all consumers affected by such agreements can rely on the ineffectiveness of the subsequently added assignment clause as well. Incidentally, the ineffectiveness does not give DFH Haus the advantage of now being able to demand the originally intended guarantee instead of the assignment. Because DFH Haus cannot invoke the ineffectiveness of the assignment agreement to its own benefit."
DFH Haus GmbH is the central service company of the corporate group DFH Deutsche Fertighaus Holding AG. According to its own statements, DFH Deutsche Fertighaus Holding AG, with its three brands Massa Haus, Allkauf Haus and Okal Haus, is the largest prefabricated house company in Germany.
The Higher Regional Court of Koblenz has imposed a fine of 60,000 euros on one of the largest German prefabricated house providers, DFH Haus GmbH.
February 8, 2022
The company had violated a final injunction in six cases and wrongfully demanded financial security from consumers. Due to these violations, the Bauherren-Schutzbund e.V. applied for the imposition of the fine.
The Higher Regional Court of Koblenz states in its decision of 5.1.2022 (2 W 427/21) that DFH Haus violated a final court ruling from 03/02/2017 (2 U 296/16) six times. This contained a cease-and-desist obligation against 14 consumer-unfriendly and unlawful clauses that the prefabricated house provider had included in its contracts. Among other things, homebuilders were to commit to irrevocably assigning their full loan disbursement claims as security to the company before the start of construction. Regarding this, the Higher Regional Court of Koblenz ruled in 2017: "The entrepreneur is granted immediate and unrestricted access to the security at any time, regardless of the contractual conformity and freedom from defects of his work services. […] The (private) homebuilder must be protected from such immediate access to the security […]" Therefore, the court prohibited DFH Haus from using these or equivalent clauses in construction contracts with consumers.
DFH Haus then changed its contracts and waived the court-prohibited clauses. Instead of the ineffective assignment clause, the contracts now provided that the homebuilder must provide a surety bank guarantee covering 20 percent of the total construction price. After the contract was concluded, DFH Haus approached the consumers and, as an alternative to providing the bank guarantee, offered the conclusion of an additional agreement pre-formulated by DFH Haus, which again included the irrevocable assignment of the loan disbursement claims. According to the Higher Regional Court’s reasoning, with this procedure the company used a clause that was equivalent in content to the assignment clause prohibited by the court’s judgment of 03/02/2017. Furthermore, the court clarifies that the subsequent additional agreement also (of course) constitutes general terms and conditions of DFH Haus. Due to the six specific cases identified by the Bauherren-Schutzbund, DFH Haus therefore violated the cease-and-desist obligation from the judgment of 03/02/2017 and must pay a fine of 10,000.00 EUR per violation to the state treasury.
Wendelin Monz, authorized board member and trusted lawyer of the Bauherren-Schutzbund, points to the high consumer protection risk of this optional additional agreement: "If consumers choose the questionable path of entering into such an additional agreement—for example, because by signing the pre-formulated assignment declaration they supposedly have less effort and do not need to arrange an additional bank guarantee—this carries a high risk. They massively restrict their ability to act towards the construction company in the event of difficulties during the construction process. If a dispute arises, the homebuilder initially does not have access to the funds from their own loan. Commissioning another company for defect remediation or continuation of construction then often fails due to a lack of freely available financial resources—while the homebuilder frequently also has to pay commitment interest at the same time. With the decision of 05.01.2022, we have clarity that DFH Haus cannot circumvent the cease-and-desist obligation from the judgment of 03/02/2017 by means of subsequent agreements; all consumers affected by such agreements can rely on the ineffectiveness of the subsequently added assignment clause as well. Incidentally, the ineffectiveness does not give DFH Haus the advantage of now being able to demand the originally intended guarantee instead of the assignment. Because DFH Haus cannot invoke the ineffectiveness of the assignment agreement to its own benefit."
DFH Haus GmbH is the central service company of the corporate group DFH Deutsche Fertighaus Holding AG. According to its own statements, DFH Deutsche Fertighaus Holding AG, with its three brands Massa Haus, Allkauf Haus and Okal Haus, is the largest prefabricated house company in Germany.