The changes brought about by the new construction contract law came into force on January 1, 2018. They apply to all contracts that are notarized from this date.
- New regulation of fictitious acceptance
If the buyer refuses to accept the contractual object despite its completion, the seller may request acceptance by setting a reasonable deadline. If the buyer does not accept the contractual object within this period, the same legal consequences apply as in the case of acceptance. The buyer can only prevent this by refusing acceptance and naming at least one defect. It has not yet been clarified whether this must be a significant defect or whether an insignificant defect is sufficient. In the case of a property development contract with a consumer (i.e. buying for private purposes), the property developer must inform the buyer of the consequences of not declaring acceptance or refusing acceptance without specifying defects when requesting acceptance, at least in text form (email is sufficient).
- Determination of condition in the event of refusal of acceptance
Section 650g (1) to (3) (in conjunction with section 650u (1) sentence 2) BGB now regulates the developer's right to a status assessment if the buyer refuses to accept the contractual property. The procedure and legal consequences are regulated as follows:
(1)
1If the customer refuses acceptance, stating defects, he must cooperate in a joint assessment of the condition of the work at the request of the contractor. 2The joint statement of condition should state the date on which it was drawn up and must be signed by both contracting parties.
(2)
1If the customer fails to attend an agreed date or a date set by the contractor within a reasonable period of time to determine the condition, the contractor may also unilaterally determine the condition. 2This does not apply if the customer is absent due to circumstances for which he is not responsible and of which he has informed the contractor immediately. 3The contractor shall provide the unilateral statement of condition with the date of preparation, sign it and provide the customer with a copy of the unilateral statement of condition.
(3)
1If the work has been procured for the customer and if an obvious defect is not stated in the condition assessment according to paragraph 1 or 2, it shall be assumed that this defect arose after the condition assessment and is the responsibility of the customer. 2The presumption shall not apply if the defect cannot have been caused by the customer due to its nature.
- Building description
The new property development law regulates the requirements for the content of the building description in more detail. It must present the essential characteristics of the contractual object in a clear manner (Art. 249 § 2 para. 1 sentence 1 BGB) and contain at least the following information (sentence 2):
- General description of the building to be constructed or the conversions to be carried out, if applicable, type of house and construction method,
- Type and scope of the services offered, planning and construction management if applicable, work on the property and construction site equipment as well as the expansion stage,
- Building data, plans with room and area details as well as views, floor plans and sections,
- Information on energy, fire protection and sound insulation standards and building physics, if applicable
- Information on the description of the building structures of all essential trades,
- Description of the interior fittings, if applicable,
- Description of the technical building systems, if applicable,
- Information on quality features that the building or conversion must meet,
- If applicable, description of the sanitary objects, fittings, electrical system, installations, information technology and outdoor facilities.
The building specification should be as detailed and precise as possible so that all parties involved are clear about all services owed and quality standards. With regard to sound insulation, the description should not just refer to a standard such as DIN 4109, but should describe the sound insulation standard in concrete terms. Plans should always include area information. It is sufficient to refer to the partition plans contained in the declaration of division in the building description.
A building description is also required if the building has already been completed and the buyer can therefore inspect the property.
The developer must provide the buyer with the building specification in good time before the contract is concluded. However, it is sufficient for the notary to send the buyer the draft contract together with all annexes and reference documents (which also include the building specification) within the two-week period, as was previously the case.
Of course, the contracting parties can agree individual deviations from the building specification in the contract. These should also be formulated as precisely as possible. The notary must also send the contract with the agreed deviations to the buyer no later than two weeks before the notarization date.
- For the rest: Interpretation on the basis of circumstances accompanying the contract
If the building specification is incomplete or unclear, the contract shall be interpreted taking into account all circumstances accompanying the contract, in particular the standard of comfort and quality according to the other specifications. Pre-contractual declarations, advertising statements and descriptions in brochures must also be taken into account. In case of doubt, the developer therefore owes a standard that corresponds to the other trades and the agreed and/or advertised quality. In the interests of the developer, the building specification should be as precise as possible in order to create clarity regarding the scope and quality standard of all services owed.
- Completion date
Under the new law, the building description must contain binding information on the date of completion of the contractual property. The developer may also specify different completion dates for the separate property and the common property (in particular outdoor facilities). If the start of construction has not yet been determined, the duration of the construction work must be specified (Art. 249 § 2 Para. 2 EGBGB). Until now, it has been customary to specify the completion date in the contract itself rather than in the construction description. This procedure can probably be retained, as the buyer is just as well informed in this way and the completion date is binding for him.
- New regulation on advance payments
According to the new Section 632a (1) sentence 1 BGB, the contractor may “demand an installment payment from the customer in the amount of the value of the services rendered by him and owed under the contract”. According to the likewise new Section 309 No. 15 BGB, the developer may not agree any installment payments in the contracts “that are significantly higher than the advance payments to be made in accordance with Section 632a (1) [...]”. It is currently disputed whether this new regulation only applies to pure construction contracts or also to developer contracts. Some assume that the percentage rates according to the MaBV (binding pursuant to Section 650v BGB, Art. 244 EGBGB) are special regulations for property development contracts; the new regulations in Section 632a (1) sentence 1 and Section 309 no. 15 BGB should not apply in addition. Others assume that both regulations (MaBV and sections 632a (1) sentence 1, 309 no. 15 BGB) are applicable alongside each other.
If one assumes that both regulations are applicable alongside each other, this means that The individual installments that the buyer has to pay in the property development contract may not significantly exceed the actual value of the individual service provided. The usual percentages provided for in Section 3 (2) MaBV cannot be applied by the developer without further ado if the value ratio of the individual services deviates significantly from this. If this cannot be foreseen when the contract is concluded, the parties may agree in the contract that the developer will demand the purchase price in seven individual installments, made up of the individual installments provided for in Section 3 (2) MaBV, whereby the developer undertakes to comply with the provisions of Section 632a (1) BGB.
- No isolated termination of the construction part of the contract
Unlike previously, the new law no longer allows the buyer to terminate the construction part of the contract in isolation and retain the property purchase. The buyer can only ever withdraw from the entire contract. If there is an interest in the possibility of partial termination, the contracting parties can grant the buyer an isolated right of termination for good cause (e.g. in the event that construction comes to a standstill).
- Publication of planning documents
According to the new § 650n BGB, the developer is obliged to hand over to the buyer before the start of construction and upon completion those documents that the buyer requires as proof to authorities and credit institutions:
(1)
1In good time before the start of the performance of a service owed, the contractor must prepare and hand over to the consumer the planning documents that the consumer needs in order to be able to prove to the authorities that the service will be performed in compliance with the relevant public law regulations. 2The obligation does not apply if the consumer or a person commissioned by the consumer creates the essential planning specifications.
(2)
Upon completion of the work at the latest, the contractor must prepare and hand over to the consumer the documents that the consumer requires in order to be able to prove to the authorities that the work has been carried out in compliance with the relevant public law regulations.
(3)
Paragraphs 1 and 2 apply accordingly if a third party, such as a lender, requires evidence of compliance with certain conditions and if the trader has raised the consumer's legitimate expectation of compliance with these conditions.
The documents required for credit institutions relate in particular to the documents required for KfW funding.
We will be happy to answer any questions you may have and provide you with recommendations on the new regulations.
English 
German