Brandenburg Higher Regional Court, 07.11.2013, Ref.: 5 U 18/11
Particularly when buying a property, the associated purchase contract should be drafted and checked very carefully and conscientiously by both parties.
Both parties should pay particular attention to the contractual provisions regarding liability for material defects.
If the contracting parties do not reach an agreement on liability for material defects, the seller shall be liable in accordance with the statutory provisions of Sections 433 et seq. BGB.
This means that in the event of a material defect, the purchaser can assert various defect rights against the seller, such as rectification, cancellation, compensation or reduction of the purchase price, subject to the statutory requirements.
In the vast majority of cases, however, provisions can be found in property purchase contracts according to which the seller's warranty is excluded in the event of a material defect in the property (exclusion of warranty).
In these cases, the seller is only liable if the buyer can prove that the seller was aware of the material defect when the property was sold and fraudulently concealed it.
In most cases, it is therefore essential that property buyers not only have the purchase contract comprehensively checked by a lawyer, but also the building by a building surveyor.
In the above-mentioned case of the Brandenburg Higher Regional Court, the court had to decide on the existence of a warranty claim of a property buyer, although the purchase contract contained a warranty exclusion.
Facts of the Case In 2006, the plaintiff acquired a house plot from the defendant. The defendant had been the registered co-owner of the property sold since 10 February 1994 and its sole owner from 21 September 1994.
In the notarised property purchase agreement between the parties, the warranty had been excluded. After the plaintiff discovered in 2007 that the residential building, a half-timbered house, was infested with wood-destroying fungi and insects, she filed a claim for damages against the defendant for fraudulent concealment of these defects.
At the request of the plaintiff, the Neuruppin Regional Court initially conducted independent proceedings to preserve evidence regarding the defects in the residential building.
According to the expert opinion obtained in these proceedings, there was considerable biotic damage caused by wood-destroying fungi and insects on structurally relevant timbers in the residential building.
According to this report, this damage would also result in necessary renovation work totalling at least € 155,000.00 gross.
The Regional Court, which was initially seised, dismissed the action on the grounds that it had not been possible to prove fraudulent concealment on the part of the defendant.
It had not been possible to prove that the defendant had actually lived in the house sold. Nor was the plaintiff able to prove that the defendant had carried out work on the house himself, on the occasion of which he had discovered the damage.
The plaintiff appealed against this decision of the Regional Court to the Brandenburg Higher Regional Court.
Brandenburg Higher Regional Court: The Higher Regional Court followed the opinion of the Regional Court and also ruled that the plaintiff had no claim for damages against the defendant under Sections 437 No. 3, 440 S. 1, 280 para. 1 BGB due to a material defect in the property sold.
It is true that the property was not proven to be free of material defects within the meaning of Section 434 (1) sentence 2 BGB. According to the undisputed findings from the expert opinion obtained in the proceedings to secure evidence, a material defect would be in particular the fact that the residential building on the property was infested with dry rot and dry mould.
According to the expert opinion, this condition had already existed with a probability bordering on certainty at the time of the transfer of risk.
Despite these defects, however, the defendant could invoke the agreed exclusion of warranty because he had not assumed any guarantee for the quality of the object of purchase and it could not be established that he had fraudulently concealed the defect.
In particular, the assurance in § 4 para. 1 sentence 3 of the property purchase contract that the seller is not aware of hidden material defects is not a guarantee of quality, but a declaration of knowledge.
It therefore does not imply an assumption of warranty for the absence of defects, but merely contains a statement regarding the seller's level of knowledge.
Source: Brandenburg Higher Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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