Clarification about past crimes in the house?
The Coburg Regional Court recently ruled on a case that attracted a lot of media attention (Coburg Regional Court, ruling dated October 6, 2020 - Ref. 11 O 92/20). In this case, the plaintiff had acquired a property from the defendant in 2018. However, the defendant, as the seller, had not disclosed in the course of the sales process that a woman and a small child had been murdered in this house 20 years ago. The plaintiff therefore wanted to rescind the notarized purchase contract and declared the rescission due to fraudulent misrepresentation. She argued that she would not have purchased the property if she had known about this psychologically charged event before the purchase.
Duty of disclosure? Yes/No
The Coburg Regional Court dismissed the buyer's claim. According to the court's conviction, the fact that a crime has taken place in a house for sale can, depending on the circumstances of the case, also be subject to unasked-for disclosure. However, this does not apply without limitation in terms of time, since in an objective assessment the significance of such a circumstance for the purchase decision decreases with the passage of time. In the present case of the Regional Court of Coburg, more than 20 years have passed between the double murder, which took place on October 02, 1998, and since the conclusion of the purchase agreement on December 13, 2018. In the conviction of the court would not have to be cleared up over a crime so long ago without demand or addition of special circumstances.
No fraudulent intent
However, the plaintiff's claims fail for another reason. Even if one were to assume a duty of disclosure on the part of the seller, the defendant still lacks a fraudulent act. A person acts fraudulently only if he expects or accepts that the contractual partner is not aware of the circumstance and would not have concluded the contract or would not have concluded the contract with this content if the circumstance had been disclosed. After informative hearing of the court, no malice was to be assumed on the part of the defendant. The fact that the crime that took place in 1998 would have had a meaning apparently did not play a decisive role for the defendant, since the defendant herself lived in this property for over a decade. For both her and her divorced husband, this incident no longer played a role. According to the court's conviction, the defendant had therefore not accepted that the plaintiff would not have concluded the contract or would not have concluded it with the agreed content if she had known about the relevant circumstances. It was then up to the plaintiff to prove the opposite, which she failed to do.
The judgment has also become final in the meantime because the plaintiff withdrew its appeal after being advised to do so by the Bamberg Higher Regional Court.
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Dusseldorf, February 2022, 16 th
Author: Attorney at Law Dennis Wiegard