In its ruling of January 20, 2021 (Case No. 20 U 2534/20 Bau), the Munich Higher Regional Court (OLG) decided that one of the duties of the architect supervising the construction is to also supervise the execution of welding seams.
The proceedings were based on the following facts:
In its ruling of January 20, 2021 (Case No. 20 U 2534/20 Bau), the Munich Higher Regional Court (OLG) decided that one of the duties of the architect supervising the construction is to also supervise the execution of welding seams.
The proceedings were based on the following facts:
The plaintiff sought damages for construction defects in a building and asserted planning and supervision errors against his architect. In the previous instance, the Landshut Regional Court, in its ruling of March 16, 2020 (Case No. 23 O 857/13), had assumed that the architect was liable for defects in the area of waterproofing and for moisture penetration of the facade as a result of improper waterproofing. The Regional Court referred to an expert opinion of April 29, 2015, which found defects in the area of waterproofing:
"with the help of a test water accumulation of approx. 7 cm on the waterproofing level of the roof terrace, water ingress could be observed after several hours, i.e. there were small leaks (e.g. at the weld seams), which were apparently not recognizable by experts (e.g. roofer, private expert, court expert). (...) therefore, it must be assumed with a very high degree of probability that execution errors led to small leakages in the sealing level (e.g. in the area of the weld seams) and thus the moisture damage occurred"
The expert's execution led to the court's conviction that there were defects in the area of waterproofing and it affirmed a breach of the architect's construction supervision duty. In doing so, the court classified the waterproofing work as particularly hazardous work (see also OLG Brandenburg, judgment of March 30, 2017 - Case No. 12 U 71/16).
"If such work results in execution defects, evidence of prima facie evidence already speaks in favor of the architect having violated his construction supervision obligation (cf. OLG Brandenburg, see above, BGH, judgment of May 16, 2002 - Case No. VII ZR 81/00)."
Even the architect's objection that, according to the expert opinion, the leakage at individual weld seams of the sealing level was not recognizable even to experts (e.g. roofer, private expert, court expert) does not, for the OLG Munich, speak against the assumption of a breach of the construction supervision obligation on the basis of prima facie evidence. It states in this regard:
"For an architect can at least be expected to inspect these hazard-prone sealing works, after completion of the works and before they are covered up. This is because in the case of typical sources of danger, critical construction sections for the overall success and trades that can only be inspected for a short period of time, the occurrence of defects must be prevented or their rectification must be arranged in good time before defects in the building materialize as part of proper construction supervision (cf. OLG Munich, judgment of June 8, 2010 - Case No. 28 U 2751/06)."
This decision is definitely to be criticized, since the construction supervision obligation for the architect thus degenerates into a boundless guarantee liability. The small leaks at the weld seams were not even recognizable to experts. Nonetheless, the OLG Munich automatically concludes from the subsequently identified construction defects of the building contractor that there was a monitoring defect on the part of the architect. Such an automatism does not exist de jure. In this regard, we refer to a judgment of the OLG Schleswig (judgment of March 25, 2020 - Case No. 12 U 162/19) in which it was clarified that the prima facie evidence for defective construction supervision also has its limits.
Düsseldorf, February 10, 2021
Author: Attorney Dennis Wiegard
