Equivalence

In real estate and construction law, equivalence refers to the principle that a design or building material other than the one specified in the standards may be accepted as equivalent if it meets the same technical, functional, or safety requirements. This principle is enshrined in the Model Building Code, in European product standards (CE marking), and in tendering regulations. On the one hand, it ensures technical openness and competition, but it requires that equivalence be demonstrated.

Equivalence in Construction Tenders

Under public procurement law (VOB/A), a tender may not favor specific products or manufacturers. If, however, specifications are formulated with specific product details, the phrase “or equivalent” must be added. Bidders may then offer equivalent alternative products, but must demonstrate equivalence through performance records, test reports, or technical data sheets. The contracting authority reviews the equivalence and may reject it if the evidence is not convincing.

The assessment of equivalence is not a purely formal act. The decisive factors are the technical performance characteristics, durability, compliance with relevant standards, and, where applicable, aesthetic requirements defined in the specifications. In the event of a dispute, the burden of proof lies with the bidding company: Anyone wishing to use an alternative product must provide substantiated proof of equivalence-a general reference to a comparable price is not sufficient.

Equivalence in Building Permits and Standards

Article 3 of the Bavarian Building Code (BayBO) permits the use of construction products and construction methods not listed in the technical regulations established by the building authorities, provided their equivalence is demonstrated-e.g., through a general building authority approval (abZ) or a European Technical Assessment (ETA). For building owners, this means: Innovative building materials or methods are not generally prohibited, but they require a structured verification process.

The principle of equivalence is particularly relevant for energy requirements under the Building Energy Act (GEG). The building owner may also meet the legal requirements through alternative measures if these are equivalent in their overall effect. For example, costly exterior wall insulation may be dispensed with if other measures-better windows, a more efficient heating system, a photovoltaic system-achieve the same energy standard. This calculation requires a qualified energy consultant.

Equivalence in Exchanges and Substitute Performance

In contract law, equivalence can also mean that a contracting party may provide an equivalent substitute performance in lieu of the originally owed performance-such as when replacing built-in kitchens, flooring, or technical systems as part of renovations. This always requires the consent of the other contracting party or a contractual provision that expressly permits substitute performances.

In practice, disputes over equivalence arise primarily when materials or equipment are temporarily unavailable and the contractor resorts to alternatives. Buyers of new-construction apartments who have entered into a purchase agreement with a building specification should ensure that the developer notifies them in writing of any changes regarding equivalence and obtains the buyer’s consent. Unilateral changes without consent may constitute a defect.

Equivalence of Trade Qualifications in the EU

The principle of equivalence also applies to professional qualifications. In the EU, the Professional Qualifications Directive (2005/36/EC) stipulates that trade and vocational qualifications from other member states must be recognized if they meet equivalent requirements. For the construction industry, this means: Companies from other EU countries may work on German construction sites under certain conditions. The Chamber of Crafts is responsible for recognition matters.

Practical Tip for Property Owners in Nuremberg and Franconia

During renovations and conversions in Nuremberg and the metropolitan region, building owners regularly encounter situations where originally planned building materials are unavailable or are to be replaced by more cost-effective alternatives. We recommend clarifying equivalence issues early on with the planning architect and-for projects requiring approval-with the building authority. In the event of a dispute with the contractor, the equivalence of a proposed alternative should be documented in writing and confirmed by an independent expert.

Any building owner in Nuremberg planning a renovation with subsidies-such as through KfW or the Bavarian State Government-should note that subsidy applications are often tied to specific product standards or insulation thicknesses. In these cases, an equivalent alternative product must frequently be separately approved by the funding agency. We are happy to help you find the right contact person.

Frequently Asked Questions

As a private building owner, do I have to prove the equivalence of construction products myself?

As a rule, the burden of proof lies with the manufacturer or supplier of the product. As a building owner, you should request the relevant documentation (abZ, ETA, test reports) and confirm with the architect or construction manager that the product is approved by the building authorities.

Can a client reject an equivalent alternative product without justification?

In public tenders (VOB/A), the client must provide an objective justification for the rejection. In private contracts, it depends on the contractual provisions; if there is no equivalence clause, the client may insist on the agreed-upon specification.

Does the principle of equivalence also apply to tradespeople from other EU countries?

Yes. EU law stipulates that professional qualifications and licenses from other member states must be recognized as equivalent if they meet comparable requirements. An electrician licensed in Austria may also work in Germany under certain conditions.

What happens if a contractor installs a different material without consent?

The unauthorized use of a different material may constitute a material defect, entitling the client to file a complaint and-after setting a deadline that has passed without resolution-to perform the work themselves, seek a price reduction, or, in extreme cases, terminate the contract. The contractor bears the risk that the installed material will be deemed non-equivalent.

Back to the Real Estate Glossary.