Fraudulently concealed defect

There is no liability for "hidden defects" or the like; rather, in this constellation, it is actually about liability for the fraudulent concealment of defects. Of course, this almost inevitably raises the question of what and how such "fraudulent concealment" by the client can ever be proven.

Indeed, warranty periods do not exist "just like that," but it is intended that after the expiry of the warranty periods, the warranty basically no longer exists, unless particularly serious circumstances – such as fraudulent concealment – arise. In this respect, the hurdle is deliberately set very high.

With the judgment of 20.03.2014 under file number 4 O 46/11, the Regional Court of Hannover has now dealt with this question pleasingly clearly and decided that the mere detectability of a defect is not sufficient for fraudulent concealment of the same. Otherwise, the client would fraudulently conceal every defect, since every defect is basically detectable. On the other hand, the Regional Court of Hannover also recognizes that the question of whether the contractor actually had knowledge usually cannot be proven by the client in most cases, unless the contractor had actually made corresponding statements to a third party and the third party is available as a witness. In view of this, the Regional Court of Hannover assumes fraudulent concealment if there is a particularly serious defect that, simply by its existence, allows a conclusion of positive knowledge or fraudulence.

In the concrete case, the Regional Court of Hannover assumed such a particularly serious defect in a constellation where the metal sheet overlaps of a roof had been fastened at too large intervals and, in particular in the edge areas, the necessary concentration of fastening was not present, so that the required fastening with regard to wind pressure and suction was insufficient.

Source: RA M. Cosler, specialist lawyer for construction and architects law, lecturer for construction law at FH Hannover.

Rhineland regards

There is no liability for "hidden defects" or the like; rather, in this constellation it is actually about liability for the fraudulent concealment of defects....

If defects are known, proof? and they are not disclosed, e.g. during a sale, this is equivalent to fraud, implying intent. Thus, the element of "fraudulent intent" should be met. The problem, however, lies in providing proof! ;-)

...Of course, this almost inevitably leads to the question of what and how such "fraudulent concealment" by the client is supposed to ever be proven. ..

Exactly! Therefore, prospective builders should use sales-independent and objective assistance beforehand. There are sufficient possibilities for this! However, they are rarely utilized!

..., that the mere detectability of a defect is certainly not sufficient for the fraudulent concealment of the same....

That is completely correct and reasonable, because defects can be based on various grounds, for example:
- lack of or no planning/dimensioning
- professional incompetence in planning and execution
- inadequate construction supervision by employed personnel

Professional deficiencies or incompetence do not initially constitute intentional fraud or fraudulence in my opinion, especially in individual cases. However, it is to be expected from the responsible party to compensate the client for any economic damage incurred at their own expense. Even here, it becomes clearly difficult for inexperienced builders or only possible in special cases to assert their actual rights. After completion of the construction project, the budget is usually overstretched, many general contractors/subcontractors know this very well and factor it in accordingly ;-) Prevention is always better and cheaper than undefined, expensive, subsequent "healing," if at all possible!

Best regards