There are various ways to preserve evidence in construction law.
If there are construction defects, it is important to secure evidence, as this can help to document and prove the defects in the event of later legal disputes or out-of-court negotiations. In particular, private construction and architectural law often leads to disputes between builders and contractors, for example, due to billing issues or defects in the construction work. In such cases, it is important that the client is able to prove and document the defects in order to assert his claims. Such evidence can be, for example, photos, witness statements or expert opinions. It is therefore advisable to start preserving evidence at an early stage in order to be well prepared later.
Preserving evidence yourself
The term "preservation of evidence" refers to the measures that can be taken by a person or company to collect and secure evidence. In the context of private construction and architectural law, for example, this could be taking photos or including witnesses (e.g. third parties or other tradespeople) to document defects or other problems in a construction project.
The advantage of preserving evidence yourself is that it can be done quickly and inexpensively. However, the disadvantage is that it has a lower evidentiary value in court than an expert opinion commissioned by the court.
Private expert opinion
A private expert opinion is an expert opinion commissioned by a private individual or a company to examine a specific question or problem and provide an expert opinion on it, for example on the condition and/or value of the construction work in question or the cause of defects.
This type of evidence offers the advantage that the party concerned can choose the expert themselves and that the expert can usually offer and carry out an on-site inspection in a timely manner, whereby they can inspect the entire structure or all construction services and identify defects that the client may not yet have noticed. However, the costs for this are usually not covered by legal expenses insurance. In addition, a private expert opinion has a lower evidentiary value than an expert opinion commissioned by a court and has no binding effect in the event of a later court decision. However, it can serve as an aid to help you decide whether and to what extent legal action should be taken or whether a dispute can be resolved out of court.
Private expert opinions should always be prepared by experts who have special expertise and experience in the respective field. The chambers of trade and the Chamber of Industry and Commerce maintain lists of experts for various fields and trades. The technical inspection authority TÜV offers quality control during construction.
Independent evidence proceedings
Independent proceedings for the taking of evidence before a court are proceedings in which a party applies to the court for an expert opinion to have certain facts established and thus to secure evidence. The proceedings for the taking of evidence can be initiated and carried out during or outside of litigation or other legal proceedings. The facts to be established must be relevant to the legal dispute, i.e. relevant to the decision, and the questions of evidence must be formulated as precisely as possible in the application. The preservation of evidence can relate to
- the condition and value of the construction work in question,
- the cause of a defect or damage, and/or
- the costs of remedying the defect or damage
. The expert commissioned is then bound by the content of the questions of evidence in his expert opinion and may not exceed his mandate, for example by determining further defects.
Independent proceedings for the taking of evidence are often lengthy and it can take several weeks or months before the actual inspection can take place. This is because the court must first serve the application on the other party and give them the opportunity to comment before appointing an expert who will then determine a date for an on-site visit and invite the parties to attend. It can then take several months before the expert opinion is presented. The parties can then comment on the expert opinion and, if necessary, ask additional questions, which means that a further supplementary expert opinion may have to be obtained. In building and architectural law, such proceedings can therefore often take several years.
The decisive advantage of a judicial evidence-securing procedure, however, is that the result can be used as evidence in (subsequent) litigation or legal proceedings between the parties and is binding for the court decision.
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.