In 2014, a condominium owner sold his condominium at a price of 79,800 euros. The new owners were aware that the apartment had a material defect. In the past, there was moisture on the walls in the bedroom. In the purchase agreement, the parties agreed that the seller would be obligated to pay for the material defect should damage occur again due to moisture in the bedroom.
The contracting parties have agreed on a period until the end of December 2015, during which this agreement is valid. At the end of 2014, moisture again formed in the bedroom of the apartment. The new owners demanded that the former owner repair the damage and pay for the damage repair. Since the former owner did not comply with the demand by the deadline set, the new owners filed a lawsuit against the previous owner. On the basis of a cost estimate, they demanded payment for the anticipated costs of remedying the defects, which amounted to 7,972.68 euros excluding value-added tax. The defendants were also to pay the pre-litigation attorney's fees.
The Regional Court of Krefeld upheld the action. The Düsseldorf Higher Regional Court and the Federal Court of Justice rejected the defendant's appeal and revision. This is because the party liable for damages is obligated to make the payment in accordance with the so-called "small damages" provision in the case law. It does not matter whether the new owner actually carries out the measures to eliminate the defect or accepts the defect. However, the sales tax would only have to be reimbursed if it is actually incurred.
Source: BGH
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