A buyer cannot always demand a refund of the purchase price from the seller if it later transpires that there is no building permit for the property (AZ: 6 U 210/22). This was recently decided by the Higher Regional Court of Frankfurt am Main (OLG). The buyer had purchased an apartment in Frankfurt's Nordend district for 330,000 euros. However, an exclusion of liability for material defects had been agreed in the purchase contract. This means that the plaintiff waived her warranty rights with regard to the purchased apartment.
Such an exclusion of liability for material defects included the lack of a building permit. Therefore, the OLG confirmed the previous decision of the regional court that the plaintiff could not reclaim the purchase price. The defendant (seller) had also credibly demonstrated that he himself had lived in the apartment for 14 years and had no knowledge of the missing building permit. The plaintiff was unable to prove that the defendant had acted fraudulently. Furthermore, the defendant could not be accused of any involvement in the construction or conversion of the apartment.
The OLG also clarified that the term "apartment" in the purchase contract does not constitute a guarantee of the quality of the building. The term "apartment" merely refers to the actual condition of the premises and their use for residential purposes. The defendant could not derive any further liability for building law compliance from the use of the term. The decision of the OLG is not final. The plaintiff can still apply for permission to appeal by lodging an appeal against denial of leave to appeal.
Source: Decision of 31.10.2023, Ref. 6 U 210/22/ordentliche-gerichtsbarkeit.hessen.de
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