Obligation to accept

Obligation to Accept - The obligation to accept refers to the purchaser’s legal duty to accept a work produced in accordance with the contract as substantially compliant with the contract and to declare this to the contractor (Section 640 of the German Civil Code (BGB)). In the real estate sector, this primarily applies to new construction, real estate development contracts, and extensive renovation projects.

Legal Basis and Significance of Acceptance

Acceptance marks the central turning point of every construction contract. It concludes the construction phase and initiates the warranty phase-a distinction with far-reaching consequences for both contracting parties. Under § 640(1) BGB, the client is obligated to accept the work produced in accordance with the contract. Refusal of acceptance is justified only if material defects exist, i.e., defects that significantly impair the work’s fitness for use.

The most important legal effect of acceptance is the reversal of the burden of proof: Prior to acceptance, the contractor must prove that the work is free of defects. After acceptance, this obligation is reversed-the customer must now prove that a defect exists and was already present at the time of acceptance. Furthermore, acceptance marks the start of the statute of limitations for claims for defects (five years for structures under § 634a BGB) and the contractor’s claim for payment becomes due.

The law recognizes various forms of acceptance. Formal acceptance is the safest option: the client and contractor jointly inspect the structure and document its condition in an acceptance report. In the case of implied acceptance, approval of the work is inferred from the client’s conduct-for example, by moving into the completed house without filing a notice of defect. In addition, there is deemed acceptance under Section 640(2) of the German Civil Code (BGB): If the contractor sets the client a reasonable deadline for acceptance and the client does not declare acceptance within this period while specifying at least one defect, the work is deemed accepted. For consumers, this deemed acceptance applies only if the contractor, when setting the deadline, points out the consequences of failing to make such a declaration.

The Acceptance Report as a Protective Measure

For new construction and real estate development contracts, we always recommend a formal acceptance with a written report. The acceptance report documents all defects identified during the inspection, outstanding work, and the condition of the building structure at the time of handover. Defects recorded in the report are considered reserved-the client does not lose their claims for subsequent performance through acceptance. A reservation of defects in the report is therefore indispensable, because according to § 640 (3) BGB, the client loses their rights regarding defects that were known to them at the time of acceptance and which they do not reserve.

Particularly in property development contracts under the Real Estate Brokerage and Property Development Ordinance (MaBV), the contract often provides for a partial acceptance of individual trades. The acceptance of common property in condominium associations may be carried out by an expert representative of the purchasers-a provision that has gained significance since the 2020 WEG reform.

Practical Tip for Nuremberg and the Metropolitan Region

Numerous new development areas are emerging in the Nuremberg metropolitan region-for example, in Nuremberg-Kornburg, Fürth-Atzenhof, or Erlangen-Büchenbach. We advise buyers of new-construction properties to consult an independent building expert for the acceptance inspection. Local expert firms are familiar with construction defects typical to the region, such as waterproofing issues in areas with high groundwater levels in the Regnitz Valley. The cost of an expert for the final inspection in the region ranges from approximately 400 to 800 euros-an investment that often pays off given the implications of the reversal of the burden of proof. We assist our clients in finding experienced experts in the Nuremberg-Fürth-Erlangen area.

Frequently Asked Questions

Can I refuse acceptance if there are minor defects?

No. Refusal of acceptance is only justified in the case of substantial defects, i.e., defects that significantly impair the use of the building. Minor defects such as scratches on a window pane or a missing silicone seal do not justify refusing acceptance. We recommend documenting such defects in detail in the acceptance report and expressly reserving the right to have them rectified.

What happens if I ignore the obligation to accept the work and do not show up for acceptance?

In this case, the contractor may set a reasonable deadline for acceptance. If you do not respond within the deadline and do not specify a concrete defect, deemed acceptance applies pursuant to § 640(2) BGB-the work is then deemed accepted, with all legal consequences, including the reversal of the burden of proof. In consumer construction contracts, however, the contractor must notify you of this consequence in writing.

What is the statute of limitations for construction defects after acceptance?

For defects in buildings, the statute of limitations under Section 634a(1)(2) of the German Civil Code (BGB) is five years from acceptance. In the case of a VOB/B contract, the period may be reduced to four years. We recommend conducting a final inspection toward the end of the warranty period to report hidden defects in a timely manner-especially with new buildings in the region, settlement cracks or moisture damage sometimes only appear after several years.

Acceptance in the Property Developer Contract: Special Provisions

Special provisions apply to property developer contracts. The property developer is obligated to hand over a completed building, with acceptance marking the transfer of benefits and burdens as well as the start of the warranty period. Under the Model Property Developer Ordinance and the 2020 WEG Reform, the acceptance of the common property may be conducted by an expert commissioned by the buyer-no longer solely by the property developer or an appraiser proposed by them. This provision significantly strengthens the rights of purchasers.

For buyers of new-construction apartments, we recommend never signing the acceptance document alone. Expert assistance from an independent building appraiser typically costs between 400 and 800 euros in the Nuremberg metropolitan area and, given the purchase price-which currently ranges from 4,000 to 6,500 euros per square meter for a new-construction apartment in Nuremberg-is a sensible investment in protection. The inspector documents all visible defects in the acceptance report, thereby securing the buyer’s claims for rectification before the warranty period expires.

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