construction defect

Construction Defect - A construction defect exists when a construction project does not meet the contractually agreed specifications or does not comply with accepted technical standards. Construction defects entitle the client to request rectification, a price reduction, termination of the contract, or compensation for damages. The warranty period is five years under the German Civil Code (BGB) and four years under the VOB/B, both starting from the date of acceptance.

Types of Construction Defects

In practice, construction defects are classified according to their cause and severity:

• Obvious defects: Defects recognizable at the time of acceptance-such as crooked tiles, cracks in the plaster, or uneven joints. These must be recorded in the acceptance report; otherwise, the client loses their claims for these defects.
• Concealed (hidden) defects: Defects that only become apparent after acceptance-for example, faulty waterproofing that only becomes visible during heavy rain, or inadequately insulated pipes that freeze during frost. These can be claimed within the warranty period.
• Defects fraudulently concealed: The contractor is aware of the defect and deliberately conceals it. The warranty period is extended to the standard statute of limitations of three years from the date of discovery, up to a maximum of ten years. These cases also entitle the client to compensation for damages.
• Material defects: Defects that significantly impair the usability of the structure-they entitle the client to refuse acceptance.
• Design defects: Errors in the architect’s or engineer’s design that lead to construction defects. In this case, the designer is liable under their own statute of limitations (§ 634a BGB, also five years).

Common Construction Defects and Their Typical Costs

In practice, the following defects occur particularly frequently-along with their typical repair costs:

Defect	Typical Cause	Repair Costs
Damp exterior basement wall	Faulty waterproofing	€15,000-40,000
Mold due to thermal bridges	Design flaws, lack of insulation	€5,000-20,000
Settlement cracks in masonry	Problems with the building site, faulty foundation	€10,000-50,000
Leaky flat roof	Errors in waterproofing or slope	€8,000-25,000
Inadequate sound insulation	Below DIN 4109 standards	Difficult to remedy; reduction in price is common
Incorrectly laid tiles	Design errors, workmanship defects	€3,000-12,000

The Client’s Rights in Case of Defects

In the event of construction defects, the client has the following rights in the statutory order of priority pursuant to Sections 634, 635-638 of the German Civil Code (BGB):

1. Subsequent Performance (Rectification): The contractor must remedy the defect within a reasonable period of time-this is the primary claim
2. Self-performance and reimbursement of costs: After the grace period has expired without success, the client may remedy the defect themselves or have it remedied by a third party and charge the costs to the contractor (Section 637 BGB)
3. Reduction: Reduction of the remuneration if rectification would be disproportionate (Section 638 BGB)
4. Damages: Compensation for consequential damages (e.g., loss of rent, hotel costs, property damage to furnishings) pursuant to §§ 280, 281 BGB
5. Withdrawal: In the case of serious defects, the client may withdraw from the contract (§ 634 No. 3 BGB)

Acceptance as a Decisive Moment

Acceptance is the most legally significant moment in a construction project: it marks a shift in the burden of proof. Prior to acceptance, the contractor must prove that the work is free of defects. After acceptance, the client must prove that a defect already existed at the time of acceptance.

We recommend never declaring acceptance lightly. A formal acceptance with expert supervision gives the client the assurance that all existing defects will be documented. The acceptance report must list all identified defects along with a deadline for their rectification. Verbal acceptances are legally valid but difficult to prove. Note: Moving into the building can also be considered implied acceptance-discuss this with your attorney.

Final Inspection and Statute of Limitations Management

A frequently overlooked component of defect defense is the final inspection shortly before the warranty period expires. Four or five years pass between acceptance and the end of the warranty - many hidden defects only become apparent during this period. Those who conduct an inspection with an expert in a timely manner and document all remaining defects in writing secure their right to rectification.

Typical latent defects that only become visible after years: cracks caused by settlement, water damage due to faulty roof connections, mold in inadequately ventilated structures, corrosion on facade joints.

Practical Tip for Property Owners in Nuremberg and Franconia

We recommend that property owners in the Nuremberg metropolitan area always report construction defects in writing, with photos and a deadline. Set the contractor a reasonable deadline of typically two to four weeks for rectification. Have the notice of defects delivered by certified mail and document the defect with photos, the date, and witnesses. In cases of disputed defects, we recommend consulting a publicly appointed and sworn expert from the Nuremberg region-the Bavarian Chamber of Architects (Waisenhausstraße, Nuremberg) maintains a list of experts.

Shortly before the warranty period expires-i.e., after four years (VOB/B) or five years (BGB)-a final inspection should take place to report any remaining defects in a timely manner. Problems with flat roof waterproofing, balcony slopes, window connections, and damp basement walls occur particularly frequently at this stage.

Frequently Asked Questions

How long is the warranty period for construction defects?

Under the German Civil Code (BGB) contract law (§ 634a BGB), the warranty period is five years from acceptance-for structures and planning services provided for a structure. If the VOB/B was effectively incorporated into the contract, the period is four years (§ 13 (4) VOB/B). For defects fraudulently concealed, the standard statute of limitations of three years from the date of discovery of the defect applies, up to a maximum of ten years from acceptance. For the architect’s planning services, the five-year period also applies pursuant to § 634a(1)(2) BGB. We recommend noting the expiration of the warranty period in your calendar and organizing a final inspection with an expert in a timely manner.

How much does a building expert charge for a defect inspection?

A publicly appointed and sworn expert charges 100-250 euros per hour, depending on the scope of the assessment. For a typical defect report involving an on-site visit and a written report, you should budget 800-2,500 euros. In legal proceedings, the expert fees are imposed on the losing party-therefore, investing in a qualified report is almost always worthwhile if the defect is of a financially significant magnitude. In urgent cases, we recommend first obtaining a brief initial assessment by phone from the expert before commissioning a comprehensive report.

Can the contractor refuse to make repairs?

The contractor may refuse to perform remedial work only if it would entail disproportionately high costs (Section 635(3) of the German Civil Code (BGB)). The courts apply a restrictive standard in assessing this-as a rule of thumb, the objection is valid if the costs of remedial work exceed three times the reduction in value caused by the defect. In this case, the client is entitled to a reduction in payment or compensation in lieu of performance. The contractor cannot simply insist on monetary compensation across the board if a technically feasible repair exists. In the event of such a conflict, we recommend seeking legal advice at an early stage.

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