Over the next few years, many second-hand properties will change hands. Many sellers are retiring or enjoying their retirement abroad. As the construction of new homes is currently very slow, many prospective buyers will have to rely on buying a second-hand property. Buyers plan to refurbish, renovate or extensively remodel the property according to their wishes. The prerequisite for this is that the substance of the second-hand property forms a sufficient basis for actually being able to realise these changes within the planned time and budget.
Guarantee rights
Second-hand properties are usually sold with a waiver of any warranty rights. This raises the question for the buyer as to whether defects or massive damage to the property may have occurred since its construction beyond the normal wear and tear of the property, which the seller must point out. We already commented on this issue in an earlier article in November 2023 (https://jasper-law.com/blog/schadensersatzpflicht-des-immobilienverkaeufers-bei-unzureichender-aufklaerung-des-kaeufers).
In practice, honest sellers are confused as to what information they need to give the buyer and what information does not need to be explicitly pointed out. Unfortunately, it turns out that even a discreet, well-intentioned reference to "defects" in the property (according to the motto "honesty lasts the longest") makes the property virtually unmarketable. Interested parties assume that there could be a serious problem behind the discreet reference. But when does the seller have to point out issues? In which cases can the buyer expect the seller to reveal details and circumstances of the property?
In principle, the following applies: According to the established case law of the Federal Court of Justice, there is no general legal obligation to inform the other party of all details and circumstances that could influence their decision in contract negotiations. Rather, each negotiating party is generally responsible for its own legal actions and must therefore obtain the information necessary for its own decision at its own expense and risk. However, even in contract negotiations in which the parties are pursuing opposing interests, each contracting party is obliged to inform the other party of circumstances that could frustrate the purpose of the contract and are therefore of material importance for the other party's decision, provided that the other party may reasonably expect this information in good faith, taking into account the general view of the market (cf. BGH Senate, judgment of 2 February 1996 - V ZR 239/94, BGHZ 132, 30, 34; judgment of 15 July 2011 - V ZR 171/10, BGHZ 190, 272 para. 7; judgment of 1 February 2013 - V ZR 72/11, NJW 2013, 1807 para. 8; BGH, judgement of 11 August 2010 - XII ZR 192/08, NJW 2010, 3362 para. 21; judgement of 14 September 2017 - VII ZR 307/16, NJW 2017, 3586 para. 14, in each case with further references).
Duty to inform
A duty of disclosure exists, for example, in the case of
· Significant moisture damage (Kammergericht Berlin MDR 2006, 200),
· Moisture in the cellar walls (OLG Koblenz, VersR 2004, 1057),
· Oil contamination (BGH NJW 2002, 1867),
· Existence of contaminated sites (BGH NJW 2001, 64),
· Existence of a risk of collapse (BGH NJW 1990, 975),
· absence of a building permit (BGH NJW 2003, 2381),
· Lack of authorisation to use the rooms as a flat (BGH BeckRS 20, 14890 Tz 7),
· Lack of the neighbour's consent to the development (OLG Koblenz NJW-RR 2003, 119).
There is no obligation to provide information:
· Cracks in the screed (OLG Munich BB 97 961),
· previous use of the property as a dry cleaner (OLG Celle NJW-RR 1997, 848).
Another recommendation at this point: The buyer's accusation that the seller has fraudulently concealed facts weighs heavily. The buyer must demonstrate and prove in court that the seller has acted fraudulently in this respect. This in turn poses major problems for the buyer. He must convince the court that the seller was aware of these facts and maliciously failed to disclose them to the buyer. But how is the buyer supposed to do this? This will rarely be clear from the correspondence. There are no witnesses to be found, or they cannot remember enough. In practice, it is often not possible to prove this, so that the buyer has to pay legal fees and court costs in addition to the damage to the property.
Real estate agent
The fact that an estate agent is often involved in the sales initiation process does not make things any easier. Many properties are sold solely through estate agents, especially by investors, meaning that buyers and sellers have rarely met face to face or even negotiated the sale of the property themselves. We will be looking at the legal problems that can arise here in another article that will be published in the coming weeks.
Düsseldorf, 14 June 2024
Dr. Dieter Jasper
Lawyer