Building Inspection

Final Inspection - The final inspection is the client’s formal declaration that the construction work has been substantially completed in accordance with the contract. It is the most legally significant step in the entire construction process, because acceptance reverses the burden of proof: From this point on, the client must prove that a defect exists-rather than the contractor having to prove that the work was defect-free. At the same time, the warranty period begins and the final payment becomes due.

Legal Effects of Acceptance

According to the German Civil Code (BGB, § 640) and the General Conditions for Construction Contracts (VOB/B, § 12), the acceptance of the construction work has far-reaching legal consequences:

• Reversal of the burden of proof: Before acceptance, the contractor must prove the absence of defects; thereafter, the client must prove the defect
• Commencement of the warranty period: Five years under the BGB (§ 634a BGB), four years under the VOB/B (§ 13 VOB/B) from the date of acceptance
• Due date of the final payment: Payment is not due until acceptance-the client has a right of retention in the amount of the estimated costs for remedying defects (usually three times the cost of remedying the defect pursuant to § 641(3) BGB)
• Transfer of risk: The risk of accidental damage or destruction of the structure passes to the client (Section 644 BGB)
• Loss of claims for contractual penalties: If acceptance is declared without an express reservation, forfeited claims for contractual penalties are lost (Section 341(3) BGB)
• Loss of known claims for defects: Defects that the client was aware of at the time of acceptance and did not reserve the right to claim for result in the loss of legal rights (Section 640(3) BGB)

Types of Acceptance

In practice, various forms of acceptance occur:

• Formal acceptance: The client and contractor inspect the structure together and draw up an acceptance report documenting all identified defects and reservations - the legally safest option
• Written acceptance without inspection: Rare; only advisable under clear circumstances and for simple services
• Implied (tacit) acceptance: Arises from the client’s conduct-such as moving in, using the property, or paying the final invoice without reservation. This risk is particularly dangerous for clients, as acceptance may occur without them having consciously intended it.
• Deemed acceptance: According to Section 640(2) of the German Civil Code (BGB), acceptance is deemed to have taken place if the client does not declare acceptance within a reasonable period set by the contractor and no material defects exist. This provision also applies to consumers if the contractor has expressly pointed out the legal consequence.

Checklist for the Acceptance Report

A complete acceptance report contains:

• Date and time of the acceptance inspection
• Names and roles of all parties involved (building owner, site manager, contractor)
• Areas and trades inspected
• Defects identified, with specific descriptions and locations
• Photographic documentation of the defects (as an attachment)
• Agreed deadlines for rectification
• Express reservations (contractual penalties, known defects)
• Meter readings for electricity, gas, and water
• Handover of keys, documents, and operating instructions
• Signatures of both parties

Consulting an expert - when and why?

For larger construction projects-new construction, major renovations, developer properties-we strongly recommend consulting an independent construction expert for the final inspection. The cost (400-800 euros for a half-day inspection) is minimal compared to the potential damage. The expert identifies hidden defects that the layperson might miss and formulates reservations in a legally sound manner.

For developer-built properties (new construction by a developer), a final inspection assessor is often recommended by consumer protection associations such as the Bauherren-Schutzbund (BSB)-especially because the warranty period under the German Civil Code (BGB) applies to developers rather than the VOB/B, and because defects are significantly harder to enforce after final acceptance.

Practical Tip for Property Owners in Nuremberg and Franconia

We strongly recommend that property owners in the Nuremberg metropolitan region always conduct a formal acceptance inspection with a written report and consult an independent expert. Document all defects-even seemingly minor ones-in the acceptance report and include an explicit reservation regarding contractual penalties and known defects.

Do not sign the report until all complaints have been recorded. A signed, unconditional acceptance can only be rescinded in very rare exceptional cases. Do not pay the final invoice unconditionally before acceptance-even a partial payment can be interpreted as implied acceptance. In the Nuremberg area, we recommend consulting an IHK-certified expert in building damage for larger construction projects.

Frequently Asked Questions

Do I have to accept the project if defects still exist?

Significant defects-that is, those that substantially restrict the intended use (e.g., a leaky roof, a malfunctioning heating system, structural issues)-entitle you to refuse acceptance entirely. In the case of minor defects-i.e., cosmetic flaws or minor deviations from the design-you can and should declare acceptance with reservations and document the defects in the acceptance report. If you refuse acceptance, the contractor must make the necessary repairs and request acceptance again. If you refuse acceptance without cause, you may be in default under § 640(2) BGB-with adverse consequences regarding contractual penalties and the final payment.

What is an acceptance report and what should it include?

The acceptance report is the written documentation of the acceptance inspection and its results. It contains: the date and location of the inspection, the names of all parties involved, the areas and trades inspected, all identified defects with a specific description (room, component, type of defect), agreed-upon deadlines for rectification, all stated reservations (in particular contractual penalties and identified defects), photographic documentation as an attachment, meter readings, and the handover of keys. Both parties sign the report. We recommend preparing the report in duplicate and having a signed copy provided to you. Take photos on-site with a timestamp and keep them together with the report.

Can I contest the acceptance retroactively?

A declared acceptance can only be contested in very limited exceptional cases: First, in the case of fraudulently concealed defects-if the contractor was aware of a defect and deliberately concealed it, the acceptance can be contested and the defect asserted despite acceptance (Section 444 BGB by analogy). Second, in the case of defects that only became apparent after acceptance (hidden defects). In the case of defects that were apparent at the time of acceptance but were not recorded in the acceptance report, the client generally loses their claims. Therefore, a thorough inspection with an expert prior to the declaration of acceptance is crucial-regretting a decision later costs a lot of money and stress.

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