If a building owner (client) refuses to accept the construction, stating at least one defect, in relation to a building contract that was concluded after January 1, 2018, the building owner has, at the request of the entrepreneur (contractor) in accordance with § 650 g para.1, sentence 1 BGB to cooperate in a joint determination of the state of the work.
If the building owner, as a client, stays away from an appointment for a joint assessment of the condition and if the appointment has been agreed by mutual agreement or has been announced by the contractor with an appropriate advance notice, the contractor can carry out the assessment of the condition and its necessary logging (usually by an authorized expert) in accordance with section 650 g (2) sentence 2 BGB.
The status report, which is usually drawn up by an expert, includes the structural condition available up to the time of the respective on-site inspection and lists the defects found and / or criticized for inspection. At best, the condition reports are also supplemented with photo documentation.
If the contractor is then given the construction work for use after a condition has been determined, the entrepreneur (contractor) is now virtually protected under Section 650 g (3) BGB. This is because it is assumed that the client is responsible for obvious defects that are not specified in a condition report. The only exceptions are defects that the contractor could not have caused.
In principle, the building contractor as the client in the event of a justified refusal to take delivery (stating at least one defect) of the client / building owner should be recommended to have a condition assessment within the meaning of § 650 g BGB carried out by an expert called in. Of course, the client also always has the right to call in an additional expert to assess the condition.
The expert office Holzmann-Bauberatung® offers neutral and independently logged status assessments for residential and industrial construction throughout Germany (including abroad). We will inspect the relevant object together with you and, if necessary, create a corresponding brief in the form of a typical court report (in accordance with the model expert regulation).
Appointments can be made via email to firstname.lastname@example.org or by calling 0821 – 60 85 65 – 40.
§ 650 g BGB
Assessment of condition when refusal to accept; Financial statements
- If the customer refuses to accept the goods, stating defects, he must cooperate with the entrepreneur’s request to determine the condition of the plant. the joint assessment of the condition should include the date of manufacture and must be signed by both contracting parties.
- If the customer fails to meet an agreed date or a date determined by the entrepreneur within a reasonable period to determine the condition, the entrepreneur can also carry out the status determination unilaterally. this does not apply if the purchaser is absent due to a circumstance for which he is not responsible and which he immediately informed the entrepreneur. the entrepreneur must provide the one-sided assessment of the condition with the date of production and sign it and provide the customer with a copy of the unilateral assessment of the condition.
- If the work has been procured for the customer and if an obvious defect is not specified in the condition determination according to paragraph 1 or 2, it is assumed that this occurred after the condition determination and is the responsibility of the customer. the presumption does not apply if the type of defect cannot have been caused by the customer.
- The remuneration is payable if
- the customer has accepted the work or the acceptance is dispensable according to § 641 paragraph 2 and
- the entrepreneur has given the customer a verifiable final invoice.
The final invoice is verifiable if it contains a clear list of the services rendered and is understandable for the customer. it is considered to be verifiable if the customer has not raised reasonable objections to its verifiability within 30 days of receipt of the final invoice.
Summary of the condition determination:
- the customer / client refuses acceptance
- the contractor may be asked to make a joint assessment of the condition
- as a rule, the condition determination must be signed by both parties (in writing)
- if the client stays away from the agreed date to determine the condition, the burden of proof is reversed if the contractor is not responsible for the absence
- defects (also obvious) which are not noted in the condition report and which become apparent after the condition has been determined, the client has to advocate for their removal, unless the defect cannot be caused by the client understandably
- the contractor’s final invoice is due after acceptance and delivery of a verifiable final invoice (tip: the time for checking the invoice should also be given)