rework

In construction and sales law, “rectification” refers to the contractor’s or seller’s obligation to remedy a identified defect at their own expense (subsequent performance through defect rectification). It is the primary legal remedy available to the client or buyer in the event of defects: Before a reduction in price, rescission, or damages can be demanded, the debtor must generally be given a deadline for rectification. In construction law, rectification is governed by Sections 633 et seq. of the German Civil Code (BGB); in sales law, Section 439 BGB applies.

Rectification in the Construction Contract

The statutory warranty period begins upon acceptance of a structure (5 years for structures under the BGB, generally 4 years for VOB/B contracts). If the client discovers a defect within this period, they are entitled to rectification by the contractor. To do so, they must notify the contractor of the defect in writing and set a reasonable deadline for its rectification.

If the contractor allows the deadline to pass or refuses to perform the rectification, the client may engage a third-party contractor and claim reimbursement of the costs from the contractor (so-called self-performance with reimbursement of costs). A prerequisite is a clear, written notice setting a deadline with a warning of self-performance. If this formal preliminary step is missing, the client cannot demand reimbursement of costs-even if the defect actually exists.

The contractor generally has the right to two attempts at rectification. Only if both fail or if the contractor fundamentally refuses to rectify the defect does the client have further rights, such as a reduction in price or withdrawal from the contract.

Rectification in Real Estate Purchases

When purchasing real estate, the law of sale under Sections 434 et seq. of the German Civil Code (BGB) applies. Sales contracts often contain a warranty exclusion for material defects-however, this does not protect the seller in cases of fraudulently concealed defects. If hidden defects are discovered after the purchase, rectification (correction of the defect by the seller) must first be demanded.

In practice, rectification in real estate purchases is rarely voluntary and often leads to legal disputes. Buyers asserting claims for rectification must prove that the defect already existed at the time of transfer of risk (handover). This is achieved through expert opinions and comprehensive documentation. Therefore, thorough technical due diligence before the purchase is the best protection: Those who are aware of defects can factor them into the purchase price or refuse to buy.

Documentation as the Key to Success

In disputes over defects, documentation is often decisive. We recommend the following procedure:

1. Written notice of defect with a detailed description of the defect and its effects
2. Photographic documentation of the defect with the date
3. Setting a deadline with a specific date (not just “within a reasonable time”)
4. Threat to perform the work oneself in the event the deadline is missed
5. Cost estimate from a third-party contractor to quantify the cost of rectification

These steps establish the necessary legal basis to effectively assert all subsequent claims in the event of the contractor’s refusal or inaction.

Refusal to Rectify Defects and Subsequent Rights

If the contractor refuses to rectify the defects or if two attempts at rectification fail, the client is entitled to further rights: reduction of the contract price or purchase price, withdrawal from the contract (in the case of a material defect), or damages in lieu of performance. In construction law, documentation is crucial: notices of defects, setting of deadlines, and attempts at rectification must be documented in writing in order to enforce claims in the event of a dispute.

Practical Tip for Property Owners in Nuremberg and Franconia

Anyone who has accepted a newly constructed property in Nuremberg or Franconia should document defects particularly carefully within the first two years. We recommend conducting a systematic inspection with a building expert shortly after moving in and after the first winter: During this time, settlement cracks, moisture problems, and defects in the building services become apparent, which must still be remedied at the contractor’s expense within the warranty period.

Shortly before the warranty period expires, we recommend a second expert inspection to ensure that any defects that arise later are also reported in a timely manner. In Nuremberg, there are qualified, publicly appointed, and sworn experts for construction defects whom we would be happy to recommend to you.

Frequently Asked Questions

How long do I have to give the contractor to make repairs?

A “reasonable period”-which is the legal requirement-depends on the extent of the defect. For minor defects, two to four weeks is standard; for complex defects, a longer period may be necessary. It is important to set the deadline specifically and in writing.

What happens if the contractor is insolvent and can no longer perform the repairs?

In this case, the right to rectification effectively lapses. Any remaining funds from the construction contract, construction completion insurance, or guarantees from the contractor can then provide security. For building owners, it is therefore important to draft contracts that include retention of security.

As a buyer of a pre-owned property, can I demand rectification?

For pre-owned properties, a warranty exclusion is usually agreed upon in the notarial contract. Rectification can then only be demanded in the case of defects that were fraudulently concealed. This is why an inspection with a building expert before the purchase is so important.

Can the contractor refuse to perform rectification if it is disproportionately expensive?

Yes, if there is a gross disproportion between the costs of rectification and the client’s economic interest, the contractor may refuse to perform the rectification (Section 635(3) of the German Civil Code (BGB)). In this case, the client is instead entitled to a claim for a price reduction or damages. The threshold for “disproportionate cost” is high-it is interpreted restrictively by the courts.

Rectification Rights for New Construction Projects in Nuremberg: What Buyers Should Know

New residential construction projects are continuously emerging in the Nuremberg metropolitan region-from condominiums in northern Nuremberg to townhouses in Erlangen-Tennenlohe or Fürth-Ronhof. Buyers of new-construction apartments should be aware that the acceptance of the building is the decisive date for the warranty. The five-year warranty period begins with acceptance, and from that point on, the buyer bears the burden of proof regarding the existence of a defect at the time of handover.

We recommend that buyers conduct the acceptance inspection not alone, but with a knowledgeable building expert. An experienced expert can identify defects that are not immediately visible-such as incomplete waterproofing, malfunctioning ventilation systems, or faulty screed finishes-which can lead to costly damage after just a few months. The cost of an acceptance inspection specialist ranges from 300 to 600 euros for a standard apartment; this investment can prevent repair costs that are many times higher.

If the expert identifies defects during the inspection, these should be noted in writing in the inspection report. The developer is obligated to remedy these defects within a reasonable period of time. Anyone who signs the inspection report without a written record or without reservations effectively forfeits important bargaining leverage in the event of future disputes.

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