Withholding payment for defects in the shell construction

Hello everyone,

the ceiling above the ground floor has currently been concreted at our site. According to the payment plan, an interim payment of approximately €30,000 is due here.

However, our expert has discovered several defects. These were reported to the main contractor [GÜ] with a deadline. The first deadline (2 weeks) passed without the defects being fixed, the second deadline is still running until Thursday (also 2 weeks).

Currently, we have withheld about €17,000 of the €30,000. Our main contractor considers this far too much and insists on payment.

Since we currently fear insolvency of the main contractor (structural builder not paid, stone supplier not paid, steel supplier not paid, light well supplier not paid), we want to make the deduction as high as possible. However, since we are not construction experts and want to avoid a deduction that is too high for defects possibly backfiring, I hope there are experts here who can give us a rough estimate of the costs.

P.S. Lawyer contacted, but the appointment is only on 17.02 and I fear we cannot hold off the main contractor that long.

Defect 1:
At the transition between the basement and the ground floor, no base sealing of the first row of stones was considered.
The basement is already fully glued with Styrodur, and the excavation pit is backfilled.


Defect 2:
At some points of the shell construction, the minimum offset of the stones was not observed; at some places, up to 7 rows of stones were built one above the other.


Defect 3:
It is a terraced house. Mineral fiber boards were installed between the buildings for sound insulation. At one spot visible from outside, there is a gap between the boards of approx. 80cm deep and approx. 20cm high. After pointing out the defect, the structural builder "stuffed" mineral fiber boards into the hole. According to our lawyer, reliable sound separation cannot be guaranteed this way.

Defect 4:
The area where the terrace doors will later be located was poured with concrete. Here, the reinforcing steel protrudes from the wall. According to the expert: This results in an insufficient bond between reinforcing steel and concrete. It must be assumed that adequate corrosion protection of the reinforcing steel is not permanently ensured. Furthermore, with insufficient concrete cover of the reinforcing steel, adequate fire protection is not provided.

Defect 5:
In the area of the floor slab, the mineral fiber board was not secured. The result is that it runs quite wavy. This is particularly problematic in the stairwell area, as only about 10cm of concrete remains to the mineral fiber board in places. However, the stones for the partition walls have a thickness of 17.5cm.


Defect 6:
The mineral fiber boards were partially not laid tight enough, so that concrete has flowed between the boards and forms a sound bridge.



These are the (known to us) defects. I would be very pleased if someone could at least roughly assign prices to the defects.

Thank you very much in advance.

I have never seen a soft mineral fiber mat serving as sound insulation placed "loose" in the formwork and do not consider this procedure to be either DIN-compliant or effective. It is obvious that at least, even if only at a few points, a sound bridge is created. In my opinion, this can no longer be remedied (or only by dismantling) and would cause me relatively sleepless nights. Because sound insulation between residential units or semi-detached houses is regularly a contentious issue. Ergo: without wanting to get ahead of your lawyer, I consider the amount to be too low. The damage could only be remedied (in my opinion as described above) by dismantling. The remaining amount is not enough for that ... Regarding the missing coverage, someone knowledgeable in statics would have to comment, but it certainly depends on the structural function of the affected wall. P.S. It also looks sloppy in some other places. But for that, certainly more pictures are needed.

I would think twice about continuing to build at all. He wouldn't see any money from us for such work. It looks like the structural builder is doing something like this for the first time.

What does the inspector suggest for fixing the defects?

In some places of the shell construction, the minimum offset of the stones was not observed; in some places, up to 7 rows of stones were laid one above the other.

The circled areas seem to me more like a misdiagnosis; I see violations of the overlap measure in three places that are not circled.

Defect 5: In the area of the floor slab, the mineral wool board was not secured. The result is that it runs quite wavy.

By "area of the floor slab" you probably mean ring beams here. The mats seem to have been used here – if at all, rather boards than mats would have been suitable for this – as lost formwork. That is all very adventurous. How "much" involving a lawyer improves things, you can read about at the Fleischerhaus from ( ) – there you can also convince yourself of the justification of your boomerang fear. I see a big dilemma here: your retention is at the same time disproportionately high and unsuitable low – both by a large margin.

Since we currently fear insolvency of the general contractor (shell builder not paid, stone supplier not paid, steel supplier not paid, supplier of light shafts not paid), we want to make the deduction as high as possible.

The points you mention strongly suggest the suspicion of insolvency. However, the decisive factor for such is mainly whether it actually exists. You should therefore urgently discuss with your lawyer both addressing the listed creditors regarding the keyword "third-party application" and informing the public prosecutor about the suspicion of delayed insolvency filing. Regarding the suspected insolvency of general contractors, I repeatedly stumble over two apparently widespread popular misconceptions. I have often read about fear that the general contractor would file for insolvency (and the fear that this would worsen the position of the client = creditor of completion). These are two misconceptions: 1. an insolvency exists when it exists – not when the managing director bothers to notify the court. Notification of insolvency is not a matter of discretion but a statutory obligation of the managing director (self-application). For the legal effects of an insolvency, it is essential that it factually exists – not when it becomes publicly known. Therefore, it is also (for the obliged self-applicant) punishable to conceal it and thus delay it. A creditor therefore has no reason to hope that the general contractor will delay declaring insolvency. 2a. One is dependent on the managing director of the general contractor fulfilling his duty to notify the court of a possible insolvency. The Insolvency Code explicitly provides that creditors also have the possibility to have a justified suspicion of insolvency examined (third-party application). A group of creditors that regularly makes use of this are health insurance funds as collection agencies for social contributions. 2b. The filing of insolvency is a sword of Damocles hanging over the heads of creditors, and without this filing, the debtor could act more freely for the benefit of all involved: NEITHER is the case!!! The insolvency itself – not its filing! – is the sword of Damocles, and all transactions made after its occurrence are generally at risk of clawback. Creditors tend rather to be the losers in a delay!

An unpleasant forecast from me: you won't pay the 17,000, you will have to tear it down and find someone to redo it ... that person will charge more money than the previous one ... you will be stuck with 30K ... he is insolvent and will then start over somewhere else ....

continue building with the: NO way

Because if you start arguing now and wait until you find a solution, so much time will pass that it will hurt financially again ... and whoever puts things like that up: you cannot negotiate/talk normally with them

First of all, thank you for the answers. I will try to address them.

The circled areas seem more like a misdiagnosis to me; I see injuries to the overlapping measure at three places that are not circled.

It would be nice if that were a misdiagnosis. May I ask why?
And yes, the overlapping measure was not adhered to in some places.

With the "area of the projectile ceiling," you probably mean ring beams here. It seems that the mats were used here—as lost formwork, if at all, plates rather than mats would have been more suitable. That is all very adventurous.

The photo is from the separation between two terraced houses—and yes, that is very adventurous.

How much involving a lawyer improves things, you can read at the Fleischerhaus from @Hausbau2019 (@Hausbau0815)—there you can also convince yourself of the justification of your boomerang fear.

Yes, I have already read through the thread a bit. However, I currently see no way around the lawyer.

I see a big dilemma here: your retention is at the same time disproportionately high and inappropriately low—both to a large extent.

Honestly, I do not really understand that sentence. From my point of view, I can basically withhold twice the amount required to remedy the defect. Unfortunately, I lack a concrete reference to quantify the required funds.

I have also read into the topic of insolvency. However, I do not want to proceed here without legal advice.

Because if you now start arguing and wait until you find a solution, so much time will pass that it will hurt financially again ... and whoever says something like: you cannot negotiate/talk normally with him

Well, I think it will not go without arguing. We have a contract that is valid independently of defects for the time being. I cannot just continue with the construction and consider the contract terminated ... :(