Moving into a house doesn't automatically mean accepting its flaws. (Photo: © andriy popov/123RF.com)
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If a building owner moves into a new building, this does not automatically mean that she approves of the construction company's faulty performance, says the Federal Court of Justice.
Anyone who takes a work into use can thereby tacitly declare its acceptance. However, this is not the case if they have simultaneously reported numerous defects. In this case, the contractor is not yet entitled to payment.
A woman from Munich had a detached house built. When the contractor deemed the house finished, she was supposed to "formally accept" the project. Acceptance means that the client should explicitly declare that she considers the contractor's work to be in accordance with the contract and approves their claim for payment.
The woman saw no reason to do so, quite the opposite. In the acceptance report – which she did not sign – she listed 18 defects , including faulty sealing in the attic, unplastered stair stringers, a crack in the exterior facade, and missing screed work in the basement. Shortly afterward, the homeowner and her family moved into the house. The contractor then sent his final invoice , amounting to €17.600. Because the Munich resident refused to pay due to the numerous defects, the contractor sued for the remaining payment.
Acceptance refused , what now? What tradespeople should know → here!
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As the Higher Regional Court of Munich had already ruled (judgment of January 12, 2016, case no. 9 U 1621/15), the Federal Court of Justice also declared the construction company's claim for payment unfounded . Without acceptance of the work, the contractor has no claim to payment. However, the client had not accepted the construction work , but rather listed 18 defects in the building in the acceptance protocol. Therefore, no approval of the construction work could be inferred from the protocol, and the client's conduct also contradicted this.
The fact that she has moved into the new building does not change anything. This would only be considered tacit acceptance if the detached house had been completed without significant defects.
Since numerous significant defects exist, it appears impossible that the client intended to approve the construction work as conforming to the contract upon moving in – especially as she had explicitly refused acceptance beforehand due to these defects. Therefore, the claim for payment is not yet due. The contractor must first rectify the identified defects . Acceptance can then take place.
Federal Court of Justice, decision of July 31, 2018, file number VII ZR 32/16
By law, the warranty period begins upon acceptance of the work, and responsibility for the house transfers to the client. Payment for the work is also due from this point onward. The client's warranty rights only arise after the work has been accepted. This was clarified by a landmark ruling of the Federal Court of Justice.
If the customer uses the work for eight to ten months, this is considered tacit acceptance . A window manufacturer therefore received payment for his work in a case decided by the Higher Regional Court of Cologne.
If a homeowner accepts a house without reporting a discovered defect , he is not entitled to reimbursement of costs, says the Higher Regional Court of Schleswig-Holstein.
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