House acceptance with defects - how to behave?

Hello everyone,

we are building with a construction company (just the house, we already had the plot) and in a few days we have the handover/acceptance of the house. Now there are still some minor defects present, which we have also reported to the site manager, such as: -There are still holes in the facade from the scaffolding. -A few interior doors do not close perfectly yet (they open again or do not close at all). -A few roller shutters are sticking. -Hole in the utility room ceiling from below (you can’t fall in from above). -Commissioning of the ventilation system and instruction have not yet taken place. ...

The contract states that the final installment of over 10% shall be paid "zug um zug bei Hausübergabe/Abnahme." I find the term "zug um zug" misleading, since I certainly am not going to carry around a suitcase with 40,000.00. I suspect that it means we do not have the usual 2 weeks (or was it 10 days?) but that we are supposed to instruct the bank to pay immediately after acceptance. Or what do you think?

And then we have the usual guarantee of 5% of the total amount, which we received as part of the first installment and which is supposed to be returned to us upon acceptance.

Now we are a bit unsure how to proceed best. Refusing acceptance would probably be unwise, since the defects are not significant and we do not want to start a dispute. But of course, we only want to pay the full amount of the last invoice once everything is free of defects. Therefore, we could maybe accept, write the defects into the acceptance protocol and set a deadline of 14 days for rectification and then withhold 10,000.00 (does that work?) until full correction. Or is the guarantee precisely for this, and we just keep it a bit longer?

I hope you can help me, thanks

The contract states that the last installment of 10% is to be paid "zug um zug upon house handover/acceptance."
I find the term "zug um zug" misleading, as I certainly am not going to run around with a suitcase containing 40,000.00. I suspect that it probably means that we do not have the usual 2 weeks (or was it 10 days?) but rather should instruct the bank to pay immediately after acceptance. Or what do you think?

Basically yes. Acceptance takes place, you transfer the money, and then the house is considered handed over.

Refusing acceptance would probably be unwise, as the defects are not substantial and we do not want to start a dispute.

With the defects or unfinished services you mentioned, refusing acceptance is not an option, or rather, you are not entitled to do so.

Basically as you described, acceptance with a defect report and withholding a reasonable remaining amount.

Personally, I consider both the deadline to be far too short (what are you supposed to do if it expires?) and the proposed sum to be far too high.

Or is the guarantee exactly for this and we just keep it a little longer?

If that is a completion guarantee, then it would basically be intended for that. However, you should look carefully at the conditions. Not that acceptance extinguishes the guarantee. Usually, it is rather for the worst-case scenario, because you certainly do not want to drag the guaranteeing bank in just because a few doors stick (to put it bluntly).

So, have you pointed out the defects and discussed them with the [GU / Bu]? These are trades that were completed a long time ago.

Now there are still some minor defects, which we have also informed the site manager about, such as: -There are still holes from the scaffolding in the façade. -A few interior doors do not close perfectly yet (they open again or do not close at all). -A few roller shutters are sticking. -Hole in the ceiling of the utility room from below (you cannot fall through from above). -Commissioning of the ventilation system and instruction have not yet taken place. ...

We had similar minor defects, e.g. the ones with the doors.

On the day of acceptance, we went through everything with our site manager; for all defects we agreed on an amount to withhold from the remaining payment. For the doors, for example, that was €1000 and the same for the roller shutters. Two weeks later the carpenter came, adjusted everything, and we paid the €1000 immediately; a week later the window installer came, etc. That’s how it went with all points until everything was done.

The instruction for the ventilation system, heating, etc. was done by the person who installed it, not by our site manager.

So I wouldn’t refuse acceptance for the "smaller" construction issues. You have already informed the site manager of the defects; who knows, maybe he won’t come alone to the acceptance :)

So, have you pointed out the defects and discussed them with the GU / Bu? These are trades that have long been completed

If it is a turnkey construction, many owners in fact only point out defects upon handover out of fear/shame/ignorance – this has been confirmed by my expert from decades of experience.
There is rarely a contractual regulation for this in practice and legally what matters in the end is what was contractually agreed upon. For example, if you report defects during construction and reduce an interim payment due in the meantime for this reason, the GU can issue a reminder and possibly even stop the construction if a payment plan was agreed. Interim acceptance of the trades and their defect remediation withholding a partial sum of a due interim payment requires an agreement at contract signing.
There have also been examples here in the forum where the GUs were pointed out defects but initially ignored them. Strictly speaking, the building must also be free of defects only at handover. Of course, it is also clear that you can no longer correct rough construction dimensions then.
If the contract is concluded under the German Construction Code, twice the amount necessary to remedy the defects may be withheld. For a contract based on VOB, it is even triple the amount. This was told to me by my expert. However, as a layperson, one can quickly estimate this amount completely wrong.
Since it does not sound like really serious matters now, I also consider a five-figure sum a bit too much.

-A few interior doors still don’t close perfectly (they open again or don’t close at all).

I also complained about that, but it’s not necessarily a defect. New seals are still quite stiff, that will settle in the first few weeks of using the doors. Regarding the retention, I would send the general contractor a list showing how much was retained for which defect. If that is absolutely not acceptable, he should explain what he thinks the correct retention would be. I also believe that it is generally underestimated here. Just the travel costs are about a hundred euros per craftsman appointment. You quickly have 300-500€ even for supposed minor issues, and twice that amount from that.