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Damage caused by construction work on neighboring property - claim for compensation under neighboring law

In addition to considerable noise pollution, it can happen that construction work on the neighboring property causes damage to your own property. These usually show up after civil engineering work and the resulting vibrations in the form of cracks in walls/ceiling/facade or through moisture damage.

For example, during the construction of excavations and the driving of sheet piles, individual piles are often driven into the ground, which are later pulled again. Damage can therefore occur both during driving and/or pulling of the planks due to shocks/vibrations.

Who is liable?

If your own house/flat suffers damage as a result of these or similar processes, the question of liability arises. Is the contractor liable? Is the neighbor liable? The answer is pleasant, because as a rule even both are liable as joint and several debtors (§ 840 BGB - see BGH, judgment of 26.11.1982 - Az. V ZR 314/81, Rz.31).

Claim for damages against neighbor

As a rule, the neighbor is liable regardless of fault in accordance with Section 906 (2) sentence 2 of the German Civil Code (BGB). This liability even applies if your neighbor should object that the DIN standards for vibrations were complied with during the construction work and that the construction work was therefore only an insignificant impairment that was to be tolerated (Section 906 (1) sentence 1 BGB). Thus, the OLG Munich states in its final judgment of 11.09.2019 (Ref. 7 U 4531/18):

"Causing massive damage to another's property is always a substantial encroachment on that property, even if legal or technical benchmarks are met in the process."

Claim for damages against the executing construction company

The executing building contractor is generally liable for the violation of property under § 823 Par. 1 BGB. Even if the building contractor should carry out to have been bound to the instructions or the order of the first defendant (neighbors), this consideration from the internal relationship (neighbor & building contractor as joint debtors) justifies no property injury in relation to you (see OLG Munich, loc. cit.).

Compensation also in case of previous damage

In the case of older buildings, the question always arises as to the extent to which existing previous damage is taken into account. Ideally, an expert opinion on the preservation of evidence should be prepared by a building expert before the start of the construction work. This documents any previous damage and allows a comparison with the condition of your building after the construction work. But even if there is prior damage, the liability of the neighbor/the building contractor remains. This is because the existence of prior damage only affects the question of the amount of the damage and does not affect the liability on the merits (cf. OLG Munich, loc. cit. "Because even a poorly built house may not be damaged."). By way of comparison: the Berlin Court of Appeal reduced the compensation by 15 percent in the case of a building that had previously suffered war damage (KG Berlin, judgment of 16.01.1997- Az. 12 U 5246/95).

Compensation for fictitious defect removal costs possible?

Despite the change in case law by the BGH, it is still possible for you to calculate your claim for damages on the basis of the fictitious costs of remedying the damage:

"This case law is decisively based on the specifics of the law on contracts for work and services, in particular the interest in equivalence of the contractor and the customer. In the present case, however, it is not a warranty claim under the contract for work and services that is being asserted, but a claim for damages under tort law or neighbor law. In general compensation law, however, it is undisputed that the injured party can calculate the damage on the basis of fictitious removal costs and, according to the freedom of disposition to which he is entitled, use the amount of compensation for other purposes (see OLG München, loc. cit. with reference to Palandt/Grüneberg, BGB, 78th edition, § 249 Rn. 6, 14)."

In summary, there is a good chance that your claims can be successfully enforced. We would be happy to help you in this case.

Attorney at Law Dennis Wiegard

Düsseldorf, 14th of June 2021

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