Almost every house and apartment on the second-hand market has quirks. From dripping taps, to buzzing thermostats, to asbestos roofs. This is not unusual at first. As a buyer, you can decide whether the issue bothers you and then factor the cost of the renovation into your offer if necessary. It can be very annoying if you, as the buyer, do not mention the problems before making the purchase. The following are a few basic legal terms.
What do I need to know in principle?
From a legal point of view, buying a used property is not much different from buying a cell phone or a ballpoint pen. Both are purchase contracts. The biggest difference is that the legislature has stipulated that the purchase contract for the purchase of real estate is only valid if it has been notarized. However, the same rules for dealing with defects apply to both contracts.
What is a defect?
A defect is, first of all, any deviation from the contractual agreements. This is good news for buyers: if something is particularly important to the buyer personally, such as a heating system that is particularly efficient, then they can ask the seller to include this in the contract.
However, a defect may also exist if the parties have not reached an agreement. Put simply, in the case of a real estate purchase, it depends on whether the property has the characteristics that are usual for things of the same kind and that a buyer can expect. This also means that you can only compare used real estate with properties of a similar year of construction, location and amenities.
What is so special about buying real estate?
The fact that all real estate purchase contracts are drawn up with the assistance of notaries, i.e. professionals, means that the rights to claim for defects are effectively excluded in virtually all contracts today. The fact that such an exclusion of rights to claim for defects is possible is a fundamental legislative decision that cannot be challenged.
The legislator created the rule of § 444 BGB in favor of the buyer. Among other things, the seller should not be able to invoke his exclusion of rights arising from defects if he has fraudulently concealed the defect.
A seller acts fraudulently only if he is aware of the defect or at least considers it possible. Proving this is often the decisive question on which the entire case depends. If the buyer cannot obtain unambiguous documents from the time of the previous owner, this line of evidence is very, very difficult. In fact, the requirements are underestimated by many home buyers.
Once this hurdle has been overcome, unfortunately the difficulties do not stop. A seller only acts "maliciously" within the meaning of § 444 BGB if he either lies, answers a direct question in the blue, although he does not actually know the answer, or does not mention a defect despite an obligation to provide information. The seller is not obliged to provide information about all the problems of a property without being asked. The courts only recognize the duty to provide unsolicited information in very rare cases.
What can you do to avoid all this trouble?
A description of the property's condition should be prepared together with the seller, stating that the particularly important problems are not present. Mold, asbestos, damp walls – these are the kinds of things that should be at least queried. This document should be included as an appendix to the purchase contract.
Should it come to that and the buyer discovers a defect in his new house, he is welcome to contact us. We give an honest assessment and reliable advice.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.