A real estate seller cannot necessarily be held responsible for the remediation of a property if contaminated sites are suspected there. This is because it would have to be examined in advance whether there is actual soil contamination. This has now been decided by the Federal Court of Justice (V ZR 213/21) and the case has therefore been referred back to the Munich Higher Regional Court (OLG). In the case at hand, a real estate seller (real estate company) had divided a building on a Munich property into individual residential units and started selling them.
However, the real estate company wanted to have an underground parking garage built beforehand, probably in order to achieve higher sales proceeds. Therefore, it commissioned a soil analysis in advance. The analysis revealed that the soil beneath the planned underground parking garage was a filled-in gravel pit contaminated with various pollutants. The real estate company then informed the city, initially suspended the sale and excluded liability in the purchase contracts for the property outside the courtyard being free of contaminated sites. It then resumed the sale and informed the buyers about the information on contaminated sites for the soil under the planned underground parking garage.
Because the new condominium owners' association later wanted to assert possible claims due to the contaminated sites in the inner courtyard and in the southern outer area, the case first ended up before the Regional Court, then before the Higher Regional Court and finally before the Federal Supreme Court. However, the BGH ruled that a so-called official risk assessment must be carried out before a verdict can be reached. This assessment must determine whether the site is actually a contaminated site within the meaning of the Federal Soil Protection Act. The BGH therefore referred the case back to the OLG.
Sources: bundesgerichtshof.de/(AZ: V ZR 213/21)/wavepoint
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