Retention after house acceptance - is substitute performance possible?

Hello,

I don’t know if this topic is positioned correctly here, but I didn’t find any other appropriate category. If there are already threads on this, please feel free to link them!

We had our house acceptance at the beginning of the year and agreed on a retention because some works were not yet completed or there were still defects.

By now, 13/15 points have been fulfilled, but one of the remaining ones is also a significant defect financially, which is why we also set a considerable retention. The deadline set in the final protocol has now passed by a good half year.
No partial payments were agreed in the final protocol, i.e. the construction company only receives the entire last retention once everything (!) is fulfilled.

We have regularly made contact both in writing and by phone and have documented this. We hope that point 14 will be fulfilled soon, with point 15 we are the most skeptical.

Thus, we are currently considering different scenarios:
Do we have to pay the service from the retention in the case of replacement performance and still pay the rest to the construction company, or can we keep everything then?
Does the construction company have a right to still claim a part of the sum (then it would be interesting how the 15 points are financially divided on the retention sum, as this was never defined)?
From when can we withhold the remaining sum? (to then live with the last defect or carry out replacement performance)

Thanks for your experiences or (legal) tips!

Kind regards

You should probably bookmark each other's threads:
https://www.hausbau-forum.de/threads/bauabnahme-neubau-trotz-fehlender-Wärmepumpe-wesentlicher-maengel.44172/

Does the construction company have the right to still claim a portion of the amount (because then it would be interesting how the 15 points are financially divided on the withheld sum, that was never defined)?

Get legal advice – not least about your position in case the contracting party becomes insolvent. If the contracting party is represented by an insolvency administrator, in layman’s terms, a situation occurs that I would colloquially call a reversal of justice.

13 out of 15 points have now been completed, but one of the remaining ones is also a major financial drawback

Then almost everything is finished. The remaining 2 points will also be managed by the company, even if it takes a while.
What is so mysterious and "expensive" still open? The heating and front door seem to be installed. :rolleyes:
Keyword: proportionality…

Depends, if the remaining points correspond to 80% of the content, wait and see. How serious is point 15?

Get legal advice – not least about your position in case the contracting party becomes insolvent. If the contracting party is represented by an insolvency administrator, colloquially speaking, a situation arises that I would popularly describe as a reversal of justice.

So we don't expect insolvency – but of course, you never really know...

The in-house company is only organizationally a, let’s say, difficult case. And the defect has to be repaired by another company, which of course/apparently has little interest in repairing a defect (for free) instead of performing cost-effective services at other construction sites.

What is still so mysterious and “expensive”?

Repairs on the plaster facade. It is not a technical defect, but a serious cosmetic one that requires repair. This was acknowledged during the final inspection and recorded in the protocol. With scaffolding setup, etc., the repair is definitely in the four-figure range.

It’s just a matter of opinion how serious you consider it.

depends if the remaining points correspond to 80% of the withheld amount, wait and have some tea.

It’s just difficult to assign monetary values to the individual 15 points.

And yes, we will keep on it and call every few weeks, but every time we hear “yes, I’m taking care of it, it should have been finished a long time ago”...

Eventually, the willingness to be patient runs out; meanwhile, in the facade area below, there are pavements and initial garden areas, and we fear damages if scaffolding setup follows, etc. -.- We’ve already had some experiences with the company and actually would prefer to withhold the money, commission a local company with substitute performance, and if the withholding is more, just be lucky. The in-house company would deserve that :mad:

So we do not assume insolvency – but of course one never really knows ...
The house company is only organizationally, let's say, a difficult case. And the defect has to be fixed by another company, which naturally/apparently has little interest in repairing a defect (free of charge) instead of performing cost-effective services at other construction sites.

I only said if ... then. Then your "opponent" is not a businessman, but a lawyer (or actually even: the, to put it kindly, not "consumer-friendly" insolvency law).

and yes, we will keep at it and call every few weeks, but every time we hear "yes, I’m taking care of it, it should have been finished long ago" ...

The contractor / debtor can implicitly interpret this as you regularly reaffirming the basically still existing residual trust in his fulfillment of the complained defects. A substitute performance is rather tricky here. Have yourself advised by a lawyer on how to put the contractor in default and/or to extract from him the declaration of consent that you will carry out the substitute performance. Otherwise, one day when he’s bored, he might remember that he could still show up at your place – and then complain about having traveled in vain, having scheduled material and people, and so on.