The BGH ruled:
1. The (long) limitation period of five years for work on buildings as per § 634a para. 1 no. 2 BGB applies to the subsequent installation of a photovoltaic system on the roof of a tennis hall if the photovoltaic system is permanently installed for permanent use, the installation represents a fundamental renovation of the tennis hall, which is to be treated as a new construction, and the photovoltaic system serves the tennis hall by fulfilling a function for it.
2. A photovoltaic system retrofitted on the roof of an indoor tennis center fulfills a function for the tennis center if the tennis center is to additionally serve as the host object of a photovoltaic system due to an expansion of its function. It is irrelevant that the photovoltaic system does not serve to supply the indoor tennis center with electricity.
The case:
The plaintiff is the owner of a tennis hall. In 2004, she commissioned the defendant to construct a photovoltaic system on the roof of the tennis hall. The defendant carried out the work, invoiced the agreed amount of 286,461.12 euros on May 29, 2004, and received payment from the plaintiff.
The photovoltaic system consists, among other things, of 335 framed individual modules. In order to install the modules on the roof, the defendant constructed a substructure that was firmly attached to the roof. The substructure and modules had to be installed in such a way that the statics of the roof would not be affected by the dead weight of the system and that the system would be storm-proof. In addition, the mounting elements had to be permanently rainproofed in the existing roof covering. The defendant wired the modules with a total of approx. 500 meters of cable, among other things to connect the modules to the inverters installed inside the hall. To do this, the defendant laid cable ducts inside the hall. The necessary penetration of the roof and the building envelope had to be permanently weatherproof and sealed. The defendant laid power lines from the inverters to a meter distribution box located outside the hall. This required a considerable amount of excavation work. The defendant also installed a control and monitoring system inside the hall, which it wired and programmed to the inverters and modules.
In a letter dated April 2005, the plaintiff complained that the system was underperforming. In response, the defendant's managing director stated that the system would have to be monitored for another two years and that only then would the cause of any underperformance be determined. The plaintiff agreed to this and wrote to the defendant again on October 9, 2007. In May 2010, the plaintiff requested the performance of independent evidence proceedings due to a reduced output of the plant. In April 2011, the expert prepared his supplementary opinion, to which the parties did not submit any further questions.
In July 2011, the plaintiff filed a lawsuit seeking repayment of 71,615.28 euros on the basis of a 25% reduction in the net remuneration. The defendant objects to the statute of limitations. The district court dismissed the action. On the plaintiff's appeal, the court of appeal amended the judgment of the Regional Court and allowed the action. With the leave of the Senate to appeal, the defendant continues to pursue its application to dismiss the action.
The court's decision:
In contrast to the decision in KJ 2013, the BGH ruled in the present case that the limitation period is five years and not only two years from acceptance. The BGH regards the work described above as a contract for work and services, but not as a purchase contract with an installation obligation.
The five-year limitation period "for buildings" applies if the work consists of erecting or fundamentally renovating a building and the typical risk situation also exists due to the late detectability of structural defects due to concealment by successive work, as well as weather and use.
According to the Federal Court of Justice, in the present case, after completion of the installation, the hall is in any case also intended to be a supporting structure for the PV system. The photovoltaic system supplied by the defendant was not only set up, but permanently installed on and in the tennis hall for long-term use. At the same time, the defendant carried out extensive installation and adaptation work on the tennis hall.
According to the Federal Court of Justice, the typical risk situation, which prompted the legislator to provide for a limitation period of five years for work on a building, is present due to the large number of interventions in the building fabric, the difficulty in identifying defects due to the coordinated nature of the work and the use of the building exposed to the weather. According to the Federal Court of Justice, the typical risk situation exists, which prompted the legislator to provide for a limitation period of five years for work on a building.
Practical tip:
In CY 2013, the Federal Court of Justice assumed a limitation period of only two years for a photovoltaic system installed on a barn. In the present case, the Federal Court of Justice now assumes five years.
According to the BGH, the differentiation should be based on whether or not there is a fixed connection between the PV system and the building, involving interference with the building fabric. Whether or not there is such a fixed connection must be decided on a case-by-case basis.
The Federal Court of Justice is thus giving builders and contractors bread with stones. In the future, neither party can be sure whether the client's warranty claim will be for two or five years from the date of acceptance.
For safety reasons, the owner of a roof-mounted PV system must always assume a two-year warranty period and report possible defects to the contractor as soon as possible after they become known.
Should defects only become apparent after two years, the only way to have even a rudimentary chance of taking the right approach to solving the problem is to consult a qualified lawyer.
Reference:
BGH, judgment of June 2, 2016 - VII ZR 348/13
previous:
Munich Higher Regional Court, judgment of December 10, 2013 - 9 U 543/12,
LG Passau, January 3, 2012 - 3 O 527/11
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.