Fundamentals of Defect Claims according to § 13 VOB/B
The limitation period for defect claims begins with the acceptance of a construction project, which is usually 4 years for buildings. During this time, the contractor is obligated to rectify all defects that are due to non-compliant performance. The burden of proof is crucial here: After acceptance, you as the client must prove that the defect exists and was caused by the contractor. Therefore, precise and comprehensible construction documentation is essential. A seamless digital construction protocol helps to document the condition at acceptance. The defect notification is the central tool to officially initiate the defect rectification process.
Create the defect notification in a proper and timely manner
§ 13 Abs. 5 Nr. 1 VOB/B requires the Written form. According to current case law, a simple email is often not sufficient to interrupt the limitation; a signed document is the safe choice. The notification must reach the contractor before the warranty period expires. Ensure proof of delivery, for example, by registered mail with return receipt. In the notification, you must describe the defects as concretely as possible, a layman’s description of the appearance is sufficient. A professional analysis of the cause is not required from the client. Setting an appropriate deadline for rectification is another mandatory component of the notification. An effective digital defect management ensures that these formal requirements are met.
Contents of a legally secure defect notification according to VOB/B
An effective defect notification must contain certain information to be legally valid. An incomplete complaint can lead to the dismissal of your claims. Here are the essential components:
- Clear identification of the construction project and the contract.
- Detailed description of the defect (symptoms, location, impact).
- Clear request for rectification at the contractor’s expense.
- Setting an appropriate deadline for the rectification of the defect.
- Date and signature of the client or an authorized representative.
- Attachment of evidence such as photos or videos with timestamps.
This structured documentation is crucial for a successful defect tracking via app and secures your position in case of disputes.
Effectively interrupt the limitation through defect notification
A significant advantage of VOB/B over BGB lies in the effect of the defect notification on the limitation period. A properly delivered, written defect complaint interrupts the ongoing limitation period for the claimed defect. From the receipt of your defect notification, a new two-year limitation period specifically for the claim for rectification of this defect begins. This new period cannot be contractually shortened. This gives you as the client valuable time and increases the pressure on the contractor to remedy the damage. Without a formally valid notification, the original period continues, which can lead to the complete loss of your claims. Therefore, correct handling is a central building block in the Change and defect management.
The process after the defect notification: From rectification to substitute performance
After the contractor has received your defect notification, they are obliged to examine and rectify the defect. If they fail to do so within the appropriate time frame you set, you have further options. According to § 13 Abs. 5 Nr. 2 VOB/B, you can have the defect rectification carried out by another company (substitute performance) at the original contractor’s expense. You can even demand a cost advance for this. For the rectified service, a new two-year warranty period begins after the acceptance of the rectification. A seamless documentation of the entire process, from the first notification to the defect clearance notification, is crucial in this respect.
Avoid typical mistakes and secure claims
In practice, defect claims often fail due to avoidable mistakes. These mistakes can cost you several thousand euros. Here are the most common pitfalls:
- Oral or telephone defect complaint: This does not meet the written form requirement and does not interrupt the limitation.
- Too vague a description: A complaint like “The facade is leaking” is too imprecise and may be ineffective.
- Missing the deadline: The notification must reach the contractor before the warranty period expires.
- No proof of delivery: Without registered mail or delivery confirmation, you cannot prove timely delivery.
- Lack of deadline setting for rectification: Without an appropriate deadline, the path to substitute performance is blocked.
The use of digital tools for the acceptances according to VOB helps to eliminate such errors from the outset.
Valoon: Your partner for legally secure defect management
The communication chaos on the construction site often leads to incomplete or formally incorrect defect notifications. WhatsApp messages get lost and do not meet the written form requirement. Valoon solves this problem by combining easy messenger communication with legally secure documentation. Capture a defect with photo, video, or text directly on the construction site. Valoon automatically generates a clean PDF document, which meets all the requirements for a defect notification according to VOB/B § 13 Nr. 5. With just one click, you send the notification and have the entire process, including timestamps and proof of delivery, securely archived. Thus, a quick note becomes a legally secure action that secures your claims for years.
Conclusion: Achieving success with digital precision
The defect notification after acceptance VOB/B § 13 Nr. 5 is a powerful tool, but only with correct application. Simplicity, legal certainty, and efficiency are the keys to avoiding costly legal disputes. Valoon ensures that your defect notifications are made in a proper and timely manner and are comprehensively documented. This way, you transform the risk of construction defects into a controlled and solvable process. Secure your projects and focus on what matters. Book your free demo now and experience how simple legally secure defect management can be.
More Links
Federal Court of Justice (BGH) provides access to a decision of the Federal Court of Justice (BGH) regarding construction services.
ARGE Construction Law in DAV publishes a press release demanding an adjustment of the VOB/B following a BGH ruling.
BSB e.V. offers a construction damage report (Update 2022) analyzing causes and effects of construction defects.
FIB Bund provides information and assistance on the application of the VOB.
Future Construction presents a funded research project in the field of construction.
FAQ
What deadline for defect rectification is appropriate according to VOB?
The appropriateness of the deadline depends on the nature and extent of the defect. For smaller, simple defects, 1-2 weeks may be sufficient. For complex issues that require material orders or extensive work, the deadline must be correspondingly longer. It should be realistic so that the contractor has a fair chance to rectify it.
What is the difference between a defect notification before and after acceptance?
Before acceptance (§ 4 Abs. 7 VOB/B), the contractor is still in the performance phase. The burden of proof that their performance is defect-free lies with them. After acceptance (§ 13 VOB/B), the warranty phase begins, and the burden of proof for the existence of a defect shifts – the client must prove the defect.
Can I withhold payment due to a defect after acceptance?
Yes, in the case of defects, you can withhold part of the final payment. According to § 641 Abs. 3 BGB, you can usually retain at least double the costs required for the rectification of the defect until it is remedied.
What happens if the contractor refuses to rectify the defect?
If the contractor ultimately refuses to rectify despite an effective defect notification and deadline set, you can immediately initiate further steps. This includes substitute performance at their expense, reduction of the remuneration, or under certain conditions, even damages.
Does negotiating about a defect also interrupt the limitation period?
Yes, as long as negotiations are ongoing between you and the contractor regarding the existence of the defect or the obligation to rectify, the limitation is suspended (§ 203 BGB). The suspension ends when one of the parties refuses to continue negotiations. However, the safest method to interrupt remains the written defect notification according to § 13 Abs. 5 VOB/B.
Does the 2-year limitation period also apply to the rectified service?
Yes, according to § 13 Abs. 5 Nr. 1 Satz 3 VOB/B, a new 2-year limitation period begins for the rectification service after its acceptance. This period secures the quality of the rectification work.
