The German Federal Supreme Court (BGH) does not recognize moonlighting as a building defect (BGH, ruling dated 28.5.2021, V ZR 24/20). In the case at hand, a buyer had purchased a property for 253,000 euros and later discovered that the building had defects in the sealing of the basement and the base of the house against moisture. She also noticed that work on the building had been carried out in black. In the contract, however, the rights of the buyer due to a material defect of the land, the building as well as co-sold things were excluded.
The buyer nevertheless sued for damages and was upheld by the court of appeal. The court assumed that the seller had fraudulently concealed the defects in the building in accordance with Section 444 of the German Civil Code. Thus, he could not invoke the agreement that could exclude or limit the rights of the buyer due to a defect.
However, the Federal Court of Justice took a different view and contradicted the decision of the Court of Appeal. It could not be inferred from the mere fact that the seller knows about the moonlighting that he has knowledge of the defects and fraudulently conceals them from the buyer.
Source: (BGH, judgment dated 28.5.2021, V ZR 24/20)
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