| @Vladislav Zolotov

A monument without a defect is a defect!

22. September 2021
From Probandt
Reading time: ca. 2 Minuten

A building that is listed as a historical monument often meets our aesthetic expectations and is therefore considered to be of particularly high quality. This is true, at least, if it is well-maintained and in perfect technical condition. Nevertheless, the seller is well advised to point out to the buyer, at the latest in the purchase contract, that the building is a listed building.

Otherwise, this can lead to unpleasant surprises not only for the buyer who wants to make changes to the building later, but also for the seller. The Federal Court of Justice has now confirmed its view in a decision (BGH - V ZR 158/19) to the effect that the monument status of a purchase object can constitute a material defect within the meaning of Section 434 (1) sentence 2 No. 2 BGB. According to this provision, the object of purchase must be suitable for normal use and have a quality that is customary for objects of the same type and that the buyer can expect according to the type of object. The buyer of a property may  - so the Federal Court of Justice - but in principle assume that the object of purchase is not under monument protection, because monument protection is the exception to the rule and with the monument status of a building obligations and restrictions are associated, which would be equivalent to a public-law building restriction.

The decision of the Federal Court of Justice shows once again that a generally held warranty exclusion only extends as far as the seller conceals circumstances that are not subject to disclosure and thus does not act fraudulently (§ 444 BGB). Disclosable according to case law are all circumstances that are of decisive importance for the resolution of the buyer and whose communication he could expect according to the traffic perception (BGH  - V ZR 285/99).

It is therefore recommended to every seller of a property to disclose all defects known to him and also to document this; the clause "purchased as viewed", which is often desired by sellers, does not lead to an exclusion of liability.

For questions on this topic, please contact attorney Dr. Probandt.

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