Are there any visible defects? Then payment is not yet due!

If the work still has defects, payment is not yet due. This applies even if acceptance has already taken place, the Federal Court of Justice clarified.

This article is part of the special topic Current building law

The construction company issued the invoice for the final payment even though there were still outstanding defects. The contract stated: The final payment is only due "after complete completion." According to the Federal Court of Justice (BGH), this means: Everything must truly be finished – including the... Defects from the acceptance protocol eliminates .

The case

In 2016, the customers purchased a condominium from a developer for a fixed price of approximately €376.000. The developer's contract stipulates – based on… Section 3 Paragraph 2 of the Broker and Developer Ordinance (MaBV) - that the final rate of 3,5 percent "upon completion" Payment was to be made. The buyers took possession of the special and common property in 2019, but retained many rights. Defects In front of doors, baseboards and wall tiles. Furthermore, parts of the outdoor facilities were not yet finished.

The developer nevertheless submitted a on account of approximately €13.000 for the final installment. The buyers only paid part of it, arguing that the installment not yet due The dispute went to court.

The judgment

Germany's highest civil court sided with the buyers. Even though the contract used almost the same term "complete completion" as in the Broker and Developer Ordinance (MaBV) if it occurs, it applies not automatically the meaning from the regulation.

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What is decisive, however, is the specific contract: There, between "Readiness to move in" and "completed completion" The court distinguished between different payment methods. The penultimate installment was due upon completion of the property – even if minor defects still existed. Therefore, the Federal Court of Justice (BGH) clarified, the final installment must be contingent upon a more advanced stage of completion.

Defects must be rectified first.

Another point was particularly important for the judges. clause In the contract: The developer expressly committed to the following: Acceptance protocol Recorded Defects zu remove. The court ruled that an average buyer could therefore expect to pay the final installment only when precisely these tasks had been completed.

The construction company's lawsuit therefore failed because the Final installment not due The court did not need to examine further points of contention, such as later complaints about defects or the buyers' offsetting claims due to an allegedly incorrect living area.

Federal Court of Justice, judgment of 22 April 2026, Ref. VII ZR 88/25

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