Guiding principle
1. If a developer offers an apartment as high-priced, representative and of high quality, the buyer may expect that a vehicle of the upper middle class can be parked in the parking lot belonging to the apartment with the usual effort.
2. If parking is only possible in reverse and after repeated maneuvering, this is considered a defect. This also applies if the developer was not allowed by building law to construct a larger parking space.
The case:
A property developer (defendant) constructs a high-quality condominium complex with an underground parking garage. A buyer (plaintiff) purchases an apartment in the condominium complex along with a parking space for €870,000.
After moving into the apartment, the plaintiffs realized that parking a larger car in the purchased garage space was only possible with extreme caution, in reverse, and after repeated maneuvering. On the basis of privately obtained expert opinions, the buyers estimate the reduced value of the parking space at 50% and of the apartment at 3%.
The buyer demands a corresponding reduction in the purchase price from the developer. He claims that the limited usability of the garage space could not be recognized before the purchase contract was concluded, and that they had not been made aware of it. The builder defends himself by objecting that the buyer was expressly made aware of the cramped situation in the underground parking garage multiple times before the purchase contract was signed. The provisions of the building code were complied with. The nature of the garage space does not constitute a defect.
In the court of first instance (Frankfurt Regional Court), evidence was taken by hearing two witnesses and obtaining an expert opinion. The expert opinion revealed the limited usability of the underground parking space. During the taking of evidence, the property developer was unable to prove that he had properly pointed out the circumstance.
The verdict:
In the first instance, the developer was overwhelmingly convicted by the Frankfurt Regional Court. The Regional Court assumed the amount of the reduction to be 17,500 euros for the underground parking space and 25,000 euros for the apartment (without a suitable parking space).
The Higher Regional Court of Frankfurt confirmed the court decision:
The limited usability of the garage constitutes a defect about which the buyer was not adequately informed. It was not necessary to set a deadline for the rectification of the defect because the builder had seriously and definitively refused to rectify the defect and such a rectification was not possible with reasonable effort.
The buyer can expect to receive a parking space where they can park their upper mid-range vehicle with the usual effort. The developer cannot claim that the buyer can use the parking space with a smaller car. The fact that the developer was not allowed by building law to construct a different (larger) parking space does not preclude the assumption of a defect under sales law. The developer offered the apartment, to which the parking space belonged, as being expensive, prestigious and of high quality. A corresponding parking space is also part of this.
Practical tip:
In condominium ownership communities with underground parking, the problem repeatedly arises that the parking spaces available there are much too small to park your car in. The Higher Regional Court of Frankfurt has ruled that the quality standard of the apartment must regularly also apply to the offered parking space, unless otherwise expressly stated in the exposé.
In any case, buyers of condominiums should check at an early stage whether the purchased parking space is actually suitable for the intended car, in order to avoid later disputes with the seller.
Reference:
OLG Frankfurt, decision of February 12, 2014 - 3 U 110/13, previous: OLG Frankfurt, January 8, 2014 - 3 U 110/13, LG Frankfurt/Main, May 15, 2013 - 2-20 O 263/10; hereinafter: BGH, 16.10.2014 - VII ZR 61/14 (Non-admission complaint rejected)
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.