Checking a property purchase contract before notarisation
A contract for the acquisition of land must be notarised (§ 311b(1) sentence 1 BGB). The notary assists the parties independently and impartially and does not represent either party (§ 14(1) sentence 2 BNotO). We read the draft before the notary appointment.
When an existing property is bought, the contract almost always excludes liability for material defects. The seller can rely on such an exclusion only to the extent that the seller has neither fraudulently concealed the defect nor given a guarantee as to its condition (§ 444 BGB). Damp cellars and unauthorised uses typically fall under this point.
Ownership passes only upon agreement and entry in the land register (§ 873(1) BGB). Until then the priority notice of conveyance (Auflassungsvormerkung) protects the buyer: later dispositions by the seller are invalid to the extent that they would defeat the buyer’s claim (§ 883(2) BGB). Land transfer tax in Bavaria is 3.5 % (§ 11 GrEStG).
Notifying building defects and limitation after acceptance
If the work is defective, the client can demand subsequent performance, remedy the defect themselves and claim reimbursement of expenses, withdraw from the contract or reduce the price, and claim damages (§ 634 BGB). Which route works depends on the extent of the defect.
Defect claims relating to a building become time-barred five years after acceptance (§ 634a(1) no. 2 and (2) BGB). Acceptance also shifts the burden of proof: anyone who has accepted the performance as fulfilment must prove the defect (§ 363 BGB). That is why we attend acceptances in Augsburg and record outstanding points.
Condominium law and resolutions of the owners’ meeting
The Condominium Act (WEG) has applied since December 2020 in the version of the WEMoG. Since then, actions concerning resolutions are directed against the community of unit owners (§ 44(2) WEG). We represent owners in Augsburg in actions challenging resolutions, service charge claims and modernisation resolutions.
Structural alterations and allocation of costs
Structural alterations go beyond proper maintenance. The owners’ meeting resolves on them by a majority of the votes cast (§ 20(1) WEG, § 25(1) WEG). For barrier-free access, charging points for electric vehicles, burglary protection, a fibre-optic connection and plug-in solar devices, each owner can demand an appropriate measure (§ 20(2) WEG).
The costs are borne by the owners who passed the resolution, in proportion to their shares (§ 21(3) WEG). It is different where approval is broad. If the resolution achieves more than two thirds of the votes cast and half of all co-ownership shares, or if the measure pays for itself within a reasonable period, the costs are distributed across all co-ownership shares (§ 21(2) WEG).
One-month challenge period under § 45 WEG
An action challenging a resolution must be brought within one month of the resolution being passed, and its grounds must be submitted within two months of the resolution being passed (§ 45 WEG). Both periods start with the meeting.
If a resolution does not comply with proper administration, the court declares it invalid on an action by a unit owner (§ 19(1) WEG, § 44(1) WEG). The nullity of a resolution can be established without any time limit (§ 44(1) WEG).
Agency commission, neighbour law and boundary distances
Besides the purchase contract and condominium law, two topics affect almost every property in Augsburg: the commission on acquisition and the relationship with the neighbour. These are governed partly by federal law and partly by Bavarian state law.
Agency commission when buying a flat or house
An agency agreement for identifying or arranging a purchase contract for a flat or a single-family house must be in text form (§ 656a BGB). If both parties to the purchase contract enter into obligations towards the same agent, this is only effective if they commit to the same amount (§ 656c(1) BGB).
If only the seller concluded the agency agreement, the claim against the buyer becomes due only once the seller has paid and the seller or the agent provides proof of this (§ 656d BGB). We check commission invoices before payment.
Boundary distances, encroachment and conciliation in Bavaria
Bavarian neighbour law is set out in Art. 43 to 54 AGBGB. Under it, trees, shrubs and hedges may not be closer than 0.50 m to the boundary (Art. 47 AGBGB). If part of a building extends over the boundary without intent or gross negligence, the neighbour must tolerate the encroachment and receives an annuity in return (§ 912 BGB).
Before an action in the local court, Art. 1 BaySchlG requires an attempt at conciliation, for example for interference under § 906 BGB, overhanging branches under § 910 BGB and disputes under Art. 43 to 54 AGBGB. This requirement does not apply to encroachment under § 912 BGB.
Further information
These topics may also be of interest:
This information does not constitute legal advice in an individual case.
