Hello,
we built in a new development area where the roads had not yet been properly constructed.
Our construction company poured the foundation slab relatively high (about 50cm (20 inches) higher than the other buildings). The driveway paving was not included at that time. We hired a paving company to install the driveway. Now that the local authority has started road construction, it turns out that our driveway cannot be connected to the road. The driveway is about 15-20cm (6-8 inches) too high. The paving company wants to adjust the driveway for €2000. But is this reasonable? Shouldn’t the construction company have aligned with the other houses and coordinated with the local authority regarding the road? I was never asked to provide any documents related to the road. Does anyone have experience with this?
we built in a new development area where the roads had not yet been properly constructed.
Our construction company poured the foundation slab relatively high (about 50cm (20 inches) higher than the other buildings). The driveway paving was not included at that time. We hired a paving company to install the driveway. Now that the local authority has started road construction, it turns out that our driveway cannot be connected to the road. The driveway is about 15-20cm (6-8 inches) too high. The paving company wants to adjust the driveway for €2000. But is this reasonable? Shouldn’t the construction company have aligned with the other houses and coordinated with the local authority regarding the road? I was never asked to provide any documents related to the road. Does anyone have experience with this?
I usually read along quietly here and often think that the client is just looking for mistakes. But this case is really funny. I see it like the original poster, without having to take on the job myself. I hire a professional company to construct a driveway, properly done. For me, that includes usability in the end. Maybe I am a trusting person who believes that the skilled worker will carry out their work correctly.
If they don’t, it’s unfortunate, but I’m not the one at fault who should have been watching, checking, and pointing out problems if something isn’t right. Or am I supposed to verify whether the structure beneath the paving is correct? Of course, if it isn’t and I only notice much later, I will have trouble, but it’s not my fault simply because I didn’t check.
It’s well known that mistakes happen on construction sites and sometimes work is done poorly. But I’m not responsible for poor workmanship just because I didn’t supervise. That’s why there are professionals with expertise.
This situation gives me the impression that the worker knows what they are doing. And yes, I believe a tradesperson must study plans and inform themselves. Otherwise, they are not a skilled worker interested in proper execution and should leave quickly before I make sure they don’t get any more contracts.
If they don’t, it’s unfortunate, but I’m not the one at fault who should have been watching, checking, and pointing out problems if something isn’t right. Or am I supposed to verify whether the structure beneath the paving is correct? Of course, if it isn’t and I only notice much later, I will have trouble, but it’s not my fault simply because I didn’t check.
It’s well known that mistakes happen on construction sites and sometimes work is done poorly. But I’m not responsible for poor workmanship just because I didn’t supervise. That’s why there are professionals with expertise.
This situation gives me the impression that the worker knows what they are doing. And yes, I believe a tradesperson must study plans and inform themselves. Otherwise, they are not a skilled worker interested in proper execution and should leave quickly before I make sure they don’t get any more contracts.
Alright, then in detail…
Perhaps everyone should first realize that in such matters, not only common sense counts, but also factors like the (documented!) prior notices and reports, the actual written agreement, and how the client subsequently handles the provided service. Because having the right and actually getting it enforced are two different things, especially in Germany, and unfortunately often not straightforward in disputes.
As already mentioned, one can initially try to insist on subsequent performance due to obvious defects with reference to §634 of the German Construction Code and hope that the contractor agrees directly or proposes a reasonable settlement. The correct wording, along with appropriate references to the relevant legal obligations, often works wonders here.
However, enforcing this (in the case of a clear order and undisputed notification obligations actually existing) right to subsequent performance in court, especially with a dispute value of 2,000 euros (about $2,200), is at least partly questionable or somewhat disproportionate. The duration and upfront costs of this entire process are considerable and can be very time-consuming and stressful, regardless of the legal situation.
In my view, the crucial points in this case are how clearly it was/is stipulated that the road would be at level X afterwards, what exactly the order stated, and whether the work phase was formally accepted (which does not affect the defect itself but significantly complicates enforcing one’s rights).
If nothing was specifically agreed upon, one can still refer to the clarification of the subjective concept of defect, which essentially means: “when the actual condition deviates unfavorably from the agreed-upon condition.” However, this will probably not be the decisive point in a dispute, but rather whether the client had a duty to notify or report and to what extent.
Of course, this is only my personal opinion and experience and definitely not legal advice 😉
Perhaps everyone should first realize that in such matters, not only common sense counts, but also factors like the (documented!) prior notices and reports, the actual written agreement, and how the client subsequently handles the provided service. Because having the right and actually getting it enforced are two different things, especially in Germany, and unfortunately often not straightforward in disputes.
As already mentioned, one can initially try to insist on subsequent performance due to obvious defects with reference to §634 of the German Construction Code and hope that the contractor agrees directly or proposes a reasonable settlement. The correct wording, along with appropriate references to the relevant legal obligations, often works wonders here.
However, enforcing this (in the case of a clear order and undisputed notification obligations actually existing) right to subsequent performance in court, especially with a dispute value of 2,000 euros (about $2,200), is at least partly questionable or somewhat disproportionate. The duration and upfront costs of this entire process are considerable and can be very time-consuming and stressful, regardless of the legal situation.
In my view, the crucial points in this case are how clearly it was/is stipulated that the road would be at level X afterwards, what exactly the order stated, and whether the work phase was formally accepted (which does not affect the defect itself but significantly complicates enforcing one’s rights).
If nothing was specifically agreed upon, one can still refer to the clarification of the subjective concept of defect, which essentially means: “when the actual condition deviates unfavorably from the agreed-upon condition.” However, this will probably not be the decisive point in a dispute, but rather whether the client had a duty to notify or report and to what extent.
Of course, this is only my personal opinion and experience and definitely not legal advice 😉
B
Bauexperte19 Aug 2016 10:41Hello,
As always, only licensed professionals may provide legal advice in Germany. The following is therefore based on my personal assessment.
**"If a defect is visible at acceptance and the work is accepted despite the defect, the client usually loses the right to claim supplementary performance, self-completion, price reduction, or contract termination."**
I agree with @Dirk Grafe – your paver dropped the ball and simply missed it. You have every right, as the client, to expect him to have checked the planned levels in advance; it doesn’t matter whom he asked.
But – you accepted his work _6 months ago_ (crystal ball mode: possibly not in writing, but through implied conduct. Crystal ball mode off), and that’s final. As far as I know, I don’t need the signed contract in the exact wording for that. I am also entitled to assume that any follow-up work was not part of the contract; otherwise, the paver’s current offer regarding the follow-up work is not understandable.
Therefore: Ignorance of the law is no excuse.
**Source: Bauherren-Schutzbund-ev.
Best regards, Bauexperte
As always, only licensed professionals may provide legal advice in Germany. The following is therefore based on my personal assessment.
STREUSALZ schrieb:In my opinion, the postscript is the problem. You accepted the paver’s work 6 months ago, despite your reservations:
It was about 6 months ago. I already suspected it might be tight.
**"If a defect is visible at acceptance and the work is accepted despite the defect, the client usually loses the right to claim supplementary performance, self-completion, price reduction, or contract termination."**
I agree with @Dirk Grafe – your paver dropped the ball and simply missed it. You have every right, as the client, to expect him to have checked the planned levels in advance; it doesn’t matter whom he asked.
But – you accepted his work _6 months ago_ (crystal ball mode: possibly not in writing, but through implied conduct. Crystal ball mode off), and that’s final. As far as I know, I don’t need the signed contract in the exact wording for that. I am also entitled to assume that any follow-up work was not part of the contract; otherwise, the paver’s current offer regarding the follow-up work is not understandable.
STREUSALZ schrieb:That does not matter to the legislator at all. It is assumed that – if a client wants to have a home built – the client informs themselves about their rights and obligations.
I am just a layperson
Therefore: Ignorance of the law is no excuse.
**Source: Bauherren-Schutzbund-ev.
Best regards, Bauexperte
HilfeHilfe schrieb:
So now the craftsman is expected to act as an architect as well and study the plans or obtain the information? What else is he supposed to do, make coffee and prepare breakfast, and fire up the grill after work?
There has to be a limit to the services provided. No – that’s where it begins. He doesn’t have to act as an architect, but as a paver. And yes – that includes studying the plans or obtaining them. That is his job. Starting to pave without plans is (grossly) negligent.
Best regards
Dirk Grafe
H
HilfeHilfe19 Aug 2016 11:40What does “gross negligence” mean? Nobody’s life is at risk here. When I assign a task at work, the department in charge either asks for clarification or just carries it out. Everything depends entirely on the quality of the paver. Maybe he was too cheap and only did exactly what he was told or contracted to do?
We recently had the same problem with the fence installers. The workers on site only did what the foreman told them. When they were told that the height was wrong, they kept going anyway. Well, we didn’t care since it was ordered by the general contractor. Now it’s being torn down and redone.
If the original poster already says they had concerns, why didn’t they say anything? You’re supposed to speak up... Paving is usually one of the last trades on site, so the most stressful time is over and everyone has a few minutes to address issues.
We recently had the same problem with the fence installers. The workers on site only did what the foreman told them. When they were told that the height was wrong, they kept going anyway. Well, we didn’t care since it was ordered by the general contractor. Now it’s being torn down and redone.
If the original poster already says they had concerns, why didn’t they say anything? You’re supposed to speak up... Paving is usually one of the last trades on site, so the most stressful time is over and everyone has a few minutes to address issues.
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