Whether the construction of a residential building, commercial building or a similar property – not everything always goes according to plan in construction projects. In Germany, facilities are often not completed within the previously agreed timeframe. Such construction delays are usually associated with considerable disadvantages for building owners. However, it is possible to assert a claim for compensation.
At Schlun & Elseven Rechtsanwälte, our German construction lawyers support you and explain the legal options available in the event of construction delays. Please, do not hesitate to contact us directly for expert legal assistance with these matters.
Delay caused by the builder, construction company or third party?
In the case of a delay in construction, those affected often ask themselves when a delay exists, how they should react to such a delay and what legal options are open to them. If you are affected by a delay in construction and want to assert your rights, you should first carefully consider the time aspects and other relevant circumstances.
The contractual agreement of a completion date
If a date for completion of construction work has been contractually agreed, this date is initially decisive regarding whether a delay exists. In addition to specifying an exact completion date in the contract, there is also the option of selecting a period. The latter option is the more common. In this case, the agreement specifies, for example, when the agreed period begins within how many months/weeks the building project is to be completed. In this way, a date can be set by which the construction work should be completed.
It should be borne in mind that by specifying this period, it cannot and must not be assumed with certainty that the construction project will be completed by the determinable date. In the event of delays of various kinds (e.g., restrictive weather conditions), the construction and thus the completion date may be postponed.
It is also essential to establish whether a period or completion date has been contractually agreed upon. If no such agreement exists, the following applies: The contractor is obliged to start the work as soon as possible and complete it within a reasonable time. This does not precisely determine the period in which the construction work should be completed. The parties concerned often disagree about this. If a legal dispute arises, the commissioned company has the burden of proof and presentation. It must explain why it is still within the reasonable period with the construction work and the expiry of this period is not yet given.
Who is to be held responsible for the delay?
If there is a delay in constructing a building, the question arises as to which party should be held responsible. On the one hand, third parties can cause a delay. On the other hand, additional wishes of the builder himself can cause such a delay. After all, the contracted building company is dependent on the suppliers for the building material that is now needed. The delivery of the additional material could take more time than previously planned. However, it should be noted here that the changed planning of the construction project is not accompanied by a postponement of the previously contractually agreed completion date. A contract amendment is required to postpone this date and thus avoid the accusation of a delay in construction.
If a third party caused the delay in construction – i.e., by a person commissioned by the contractor – the question arises whether the contractor or the third party is now responsible. The Civil Code stipulates that a debtor is not in default as long as the performance is omitted due to a circumstance for which the contractor is not responsible in such construction law cases (cf. Section 286 (4) BGB). It must be borne in mind that the building contractor is, in principle, liable to the same extent as for his fault for all persons he employs to fulfil his obligations (cf. Section 278 sentence 1 BGB). However, this provision does not apply to delays in delivery caused by contracted building material suppliers. Whether the delay is caused by a wring delivery or a defect in building material is irrelevant. However, if the company commissioned by the building owner has specified the wrong quantity or has not ordered the material required from the suppliers, the fault lies with the building company, so the latter is again responsible.
The lawyers at Schlun & Elseven will be happy to explain to you when the construction company is liable and under what circumstances a builder must assert his claims against a third party.
Is a reminder necessary?
Building owners often wonder whether a reminder is required in the event of a delay in construction and when this should be issued. According to § 286 para. 1 sentence 1 BGB