The client against the planner
In practice, it is often the case that the plans submitted for later execution are defective. Then the question arises for the building owner whether and how he can make a claim against the planner for the damages he has incurred. In this context, mistakes by the builder-owner occur time and again, which he can avoid.
For example, the Higher Regional Court of Hamm stated in a judgement of 28 January 2021 (Case No. I-21 U 54/19) that the building owner should under no circumstances forget to request the planner, setting a deadline, to provide the planning services etc. required to remedy the defect. The client can only refrain from setting such a deadline if the planner refuses to provide these services. Only then should the client appoint a new planner to take care of the defect rectification work (planning, tendering, construction supervision). If he does not give his planner the opportunity to plan and supervise these defect removal works accordingly, he cannot demand compensation for the costs he has incurred (by commissioning third parties).
The possible loss of confidence in the (old) planner does not justify waiving the deadline. The Higher Regional Court of Hamm expressly pointed out that the client cannot waive such a request to carry out these planning services even if the planner vehemently denies the submission of defects in his performance. Only the explicit refusal of the planner to carry out these "rectification services" makes a corresponding request with a deadline unnecessary.
Every building owner is therefore well advised to seek legal advice when carrying out defect rectification work and to pay close attention to the fact that the relevant prerequisites for a claim for damages are met. Only then will he be able to successfully assert claims for damages against the planner and, if applicable, against the company carrying out the construction work. We will be happy to help with this.
Author: Dr. Dieter Jasper, lawyer
Düsseldorf, 19 October 2021