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Legal (6) - "Agents are liable for incorrect information - even for their clients" (Source: www.immonet. com)

Source: www.immonet.de

"Agents are liable for incorrect information - even for their clients

(free by: BGH, Judgement of 22.9.2005 - III ZR 295 / 04 - and
BGH, Judgement of 14.12.2000 - III ZR 3 / 00 -)

Furthermore, if the titular metaphor continued validity, like the two recent top court cases decided from the brokerage and real estate sales contract law provide information

.

A real estate agent, whose work to conclude a sales contract has done, is usually already a happy man but he should be particularly happy if the notarial land purchase contract contains a clause which assures him a direct claim against the buyer. Such a clause making the purchase contract for a contract for the benefit of third parties. The broker earned a right to receive cash without having the buyer ever signed a contract and thus gains added a debtor, for his client, the seller is, of course, it also, then jointly and severally liable with the buyer's obligation to pay. This law with so many advantages for the broker blessed situation may also arise even in the opposite operate.

what happened in this case. The defendant had received the order from a couple to find a buyer for its Art Nouveau villa. The broker did this successfully and was then present at the notarization of his famous treaty. The contract contained a warranty and the assurance that the seller was the existence of secret defects such as sponge or wood tick unknown. Both sellers and brokers knew, however, that the house had been suffering for several years, a substantial house borer infestation. was also a clause was buying part of the contract, which follows. "The contract is evidence of the defendant to come about, the buyer holds the seller from the obligation to pay the broker's fee-free and therefore undertakes to pay the agent a commission of 5.5% of the purchase price plus 15% VAT. "Subsequently, the plaintiff paid the defendant a sum of 101 200 DM. After the applicants were aware of the strong house borer infestation, they took not only the seller to refund the purchase price of train to train against restitution of the land claim, but requested by the defendant also repay the broker salary. The court referred to the plaintiff, and was

claims conditions in this case, the common law: Although the following legal grounds Solidified the legal institution of culpa in contrahendo (now: § 311 para 2 BGB). This generally requires the existence of a pre-contractual trust. The problem in this case is that between the plaintiff and defendant never a contract has been made, but both parties had entered into a contractual relationship only to the seller. The broker as a third party beneficiary of the purchase contract gives, according to settled Supreme Court jurisprudence merely a right to claim the eliminated. But when a pre-contractual trust eist possible, but will not ever planned a contract between the parties to that relationship? For the privilege, which the broker emanating from the Treaty for the benefit of third parties, the Court considers that it should result also corresponding duties of care, which are sufficient for a relationship of trust within the meaning of culpa in contrahendo. The question is only whether the information fell outside the buyer about hidden defects in these duties of care. Other hand, suggest that that this was a typical debtor duty, which, for example, send a double agent who was in a contractual relationship with the parties on all sides of the contract. Such a double agent status arises not by the clause in the contract, which the brokerage fee payable by the seller on the buyer's passing. For over the buyer, the broker is not liable, but only creditors.

was

Despite these doctrinal concerns can be justified to burden an estate agent, who conceals his deceit known defects, and in this way essential to the emergence of his right to commission contributes to a repayment obligation.

The practice is the real estate agents to recommend that in cases in which shifted the seller's obligation to pay the broker a contract clause in favor of third parties to the buyer, the purchase contract carefully to check on possibly contained therein fraud schemes and, when relevant to the buyer of the substantive shortcomings of the treaty.

Another supreme court established a commission refund obligation of a broker, however, is not unambiguously good judge:

Thus, the Supreme Court decided in a rather more recent ruling, the invalidity of the main contract due to a change (Author's note: The legal institution of rescission since 2002 no longer exists, its replacement by the resignation took effect) of the contract let by the buyer, at least then the broker's commission is expunged afterwards, if the buyer the contract by a challenge for fraudulent misrepresentation acc. § 123 paragraph 1 BGB could take them down.

In the case in question the plaintiff a house property at a price of DM 185,000 had purchased and paid for to the defendant a commission of DM 6382.50. With the claim that the purchased house for leaving many, the seller fraudulently concealed defects, they raised in May 1996 against this Wandelungsklage. The district court granted the application of law and stated the grounds that the structural condition of buildings was so insufficient that there is danger of collapse. This deficiency, the defendant's concealment of fraudulent seller. The broker was unaware of the defective Condition of the building.

then took the buyer, the defendant both for reimbursement of the broker's commission as well as damages in a total amount of DM 186,820.60 last to complete. District Court and Court of Appeal dismissed the action. The Federal Court found, however, the buyers are entitled to the reimbursement of the agency fee in the amount of DM 6382.50.

led In support of the court, the plaintiffs could according to a claim.

invoke § 812 para 1 sentence 1 BGB of unjust enrichment. This behavior is so because the liability of the buyer was subsequently eliminated.

§ 652 para 1 BGB, the emergence of a right to commission the agent makes depends only on the validity of the final contract, but not its execution. Circumstances that preclude an effective conclusion of the main contract or as it did from the beginning appear ineffective, such as; form invalidity, illegality, immorality, avoidance for mistake or fraud precluded a commission requirement. Circumstances that eliminate the contract without a final-lay imperfection, only the performance of its contractual obligations for the future (as subsequent frustration, resignation, retirement or termination of the contract by mutual agreement) let the commission is unanimous Court regularly affected (for many BGH, Judgement of 11 November 1992 - IV ZR 218/91 -). Any such subsequent ex nunc elimination of performance requirements are also in the Institute of rescission.

If the understandable reasoning of the court. A contract that is being challenged and therefore is regarded as void ab initio may not trigger a brokerage fee of the broker, because a contract is precisely necessary condition for the emergence of such a claim. Different is to have revealed, however, if a Party is dissolved in retrospect, effective for the future of your contractual obligations. This is likely to healthy sense of justice not be borne by the broker.

The court here, however, disagrees. In situations, where due to the buyer at the same time a right of challenge on grounds of fraud, be it for the broker a purely random event, whether the buyer to exercise this right of rescission or of its conversion right. Because of this contingency should the broker does not benefit from the choice of consumers. The only requirement is that the one-year warranty period of § 124 BGB was in progress. This view of the Court but leaves out of account that the buyer has in his choice just the way the Loss of the commission refund claim on a plea of rescission or cancellation in accordance with current law of the einzukalkulieren. The court states, namely, the buyer's choice depends largely on him in a particular case cheapest legal implications. It draws not the right conclusions, but allows that the buyer get the benefits of rescission with respect to a rescission of the contract after enrichment law to challenge the benefit, but without having to simultaneously deprive him of it in relationship to the broker resulting disadvantages . Moreover, the result of the Supreme Court is dogmatic difficult justified, and it arises rather a mere balancing of interests, unfortunately at the expense of the broker.

Honesty has the longest-this beautiful maxim holds good, not in this case, unfortunately. After all, whether the broker had knowledge of the defects or not, his right to commission it would have been deprived in both cases.

Contact

Breiholdt & Legal Voscherau

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29 20354 Hamburg

Internet: www.breiholdt -voscherau.de

E-mail: info@breiholdt-voscherau.de

© Immonet.de "

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Legal (5) - "broker carries a heavy responsibility" (From the Berliner Zeitung)

The Berliner Zeitung has published an interesting article in your archive ( Link ):

Under the heading" Agents with a high responsibility

information in the synopsis should be examined carefully, "writes the editor Joachim Garbe-Emden:

" the beginning of the work of a real estate agent is often the exposé. This document provides the basis for a speedy and lucrative sale. Herein Given of the value and position of the cutting equipment to selling real estate. Also, special features, such as preservation of the building or the divisibility of land, there can be mentioned. If the property described but too rosy, this is not only risky for the seller, but also for the brokers.

commission in danger

The preparation of the outline should not leave the agency without its own test on the information of the seller or advertise the object is not critical. Otherwise, he risks exposing himself to damages of the buyer or even to lose his commission.

used in many cases the owners willing to sell to a broker and instructed that to find a buyer who will bear the brokerage commission. If the purchase contract settled accordingly, so between broker and buyer of a conciliation agreement has come into existence, including due diligence and auditing requirements of the broker to the buyer.

The agent should be in the synopsis to make it clear whether information is based on the object on its research. As far as only information the seller is passed, it should be noted. For providing false information of the seller, the broker is liable only then, if he could see, that they were wrong, for example in terms of floor space or the year of manufacture. The broker must also generally do not own investigation. Further investigation is required, however, arise if the financial risk and the buyer is inexperienced recognizable.

Where the object is not the expectations of the buyer, he holds - Previous experience has shown that once the commission - if not yet paid. He must then, however, telling them that not only the non-contractual performance of the contract by the seller of the broker's commission claim against the buyer reduces. However, if a fraudulent misrepresentation of the seller before, it also eliminates the claim on the broker's commission (BGH, Judgement of 14 12th 2000, III ZR 3 / 00). The same applies if the buyer has reserved the resignation in the event that the building permit or a necessary division approval is not granted (BGH, Judgement of 20 2nd, 1997, III ZR 81/96).

Sometimes you just want the broker if the seller can not be held liable for damages' claims of the buyer against the agent after the statute of limitations in force since 1.1.2002 law within three years after the purchaser of the damage, such as the lack of Development potential has gained planning permission or lack of, knowledge. The claims against the seller for defects lapse or defects, in principle within just two years after transfer of the property. So it can happen that the buyer can still keep to the broker, while claims under the purchase agreement have been barred. .

The author is a lawyer with a focus on construction and real estate law at the law firm Schlawien-Naab, Office Berlin-Friedrichstrasse "

's in the article mentioned regarding one finds the way, including here: Link

.

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agency fee

Well, the allegation of fraudulent misrepresentation is based, among other things, that before final of the purchase contract, a written (!) Confirmation of received brokers, insurance in this, that the house is dry and even before redevelopment was dry. As is so out later, that was probably not subscribe the whole truth ... at least that the expert commissioned by us .

any case it should be thought that the fact of the repealed on the basis of this deceit every purchase agreement also Agents convinced that the commission is not earned and therefore should be paid back. Not this member of his profession.

Frech he claims but in reply to the corresponding request for payment of our attorney that we really ought to be glad that we did not get the appropriate additional expenses due to the difficult situation even charged extra.

Since it has slyly even our lawyer nearly speechless. But only almost. The nice gentleman broker will find before Christmas, the application in the mailbox. Oh, and who as brokers, insurance agents and investment advisers earn their money required under § 35 of the Commercial Code to special conditions. If they are not given or not, a commercial activities are launched. Let's see whether the competent authorities be active ...

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land transfer tax refund

After the contract has now been lifted because of the fraud, there is now also a decision of the competent tax office . The original assessment was removed in accordance with § 16 para 1 No 1 GrEStG. The land transfer tax is thus reimbursed.

We had to not even make a specific request. It was enough, the following passage in the notarial termination agreement. "The purchaser has paid under the tax number xxxxx / xxxxx at the Finanzamt Ludwigsburg his estate transfer tax on the purchase agreement, the tax clearance certificate from the tax office is before. The buyer sought under § 16 para 1 item 2 GrEStG the tax office because of the cancellation of the contract due to a legal claim of power disturbance, the abolition of the tax assessment and referral back to the land transfer tax on their Current Account with the XXX Bank ... "

has since Our notary probably found the right wording ... the tax office certainly had not even any questions. And our lawyer no additions.

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purchase contract is terminated

Good news. Almost 6 months after the signing of the notarial purchase contract yesterday we had another Notary - the dissolution of the original Purchase agreement. To avoid a long and probably expensive dispute, our sales could bring themselves to accept the challenge to the sales contract for fraudulent misrepresentation by us. The place so we are going on.

We want to re-sellers and owners of luck in enforcing the warranty claims against the builder - the IMAC .

means for us now, first time celebrate the success ... and then, however, the battle continues, as it still does the odd amount of money recovered. We are thinking of real estate taxes, brokerage fees, etc.

This is an exciting ...

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Press Research Part 11





















Source: Article in the StZ of 3 November 2008


writes in today's edition of the Stuttgarter Zeitung again on Imac ... and our old house ( Link ).

in the regional edition of the STZ in the district of Ludwigsburg and the Kornwestheimer Marbury and newspaper articles the "Historical jewelry will be problem children" with the subtitle: "The controversial construction company Leonberger Imac drives for cheap because of possible redevelopment authorities and property owners."

Source: Article in the StZ of 3 November 2008

The article writes editor Mark Klohr include: . "Not only the prosecution is concerned with the Leonberger real estate entrepreneur Matthias HEISSNER His
firm historical fillets renovated in many municipalities - and that may not always work correctly."

goes on to say. "Lack of money is the enemy of the state sovereignty are not only at the federal level, many examples of desirable public policy objectives, from sheer lack of money be put in question. The rehabilitation of historical centers in Baden Wuerttemberg is municipal and local administrations always a noble aim. But
often the funds are simply too empty to redevelop the historic gems themselves.
But the sale involves risks. The best example is a half-timbered houses around the old city hall in the Freiberg district Beihingen. End of 2003, the city decided to sell the four buildings in Neckar road. A renovation would have cost up to 500 000 €. About two dozen developers were contacted, but no one was interested. The only interested party was the real estate company Leonberger Imac. "We were glad we found someone had, "said Freiberger Stadtbaumeister Wolfram Rieger," then these problems were not yet known. "The problems of which speaks Riegler, one part concern the Imac's managing director Matthias HEISSNER. The office is investigating the head of the Leonberger company on suspicion of fraud, embezzlement and insolvency. Heissner and his colleague Erik R. said to have managed through the Imac-daughter theme, the real estate in Baden-Württemberg, embezzled including security deposits. For individual has criminal charges in the meantime an avalanche developed more than 100 injured would have been reported, a spokeswoman with the prosecutor. Problems are Listeners hot real estate company but also a completely different front: She is accused of cheap renovation. Brandt, the couple bought it for around 230 000 euros, the former
Backhäusle next to the old town hall in Freiberg. The historic complex was renovated by the Imac. The facade sporting a new look. But inside there is moisture and mold have taken root. When you enter the house, is greeted by a musty odor. According to a sworn expert of the Chamber of Commerce in the basement walls are damp twice as much as they should be. Instead of the basement of the building complex on the slope
to seal against moisture from the outside, cheaper renovation plaster
was applied. A repair will be according to the Evaluators about 100 000 € cost. After several phone calls
Holger Brandt was told that the general contractor
refuses again to act, because bills were not paid for
Imac. "Mr. HEISSNER told me on the phone that was no longer interested in the whole thing," said Holger Brandt. Because the couple bought the little house not from the iMac, but of a family, try the Brandts, the property owner to the
return. Matthias HEISSNER expressed on the phone not on the allegations. "I wish you just have a nice day," he says - and hangs up. Whether the subject of cheap and rehabilitation to an avalanche increases or remains the single case is still open. An expert on the building scene that does not want to be named in the newspaper, suspects that could be behind such a sloppy restoration work method. If a developer driving prices down far turn, stood at the end of the chain craftsmen who would take a lot of work for very little money - at the expense of quality. "If you hear something like that scares you," says the mayor Rudolf Markgröninger Kürner. The Imac is currently in the process of the country's historic fruit box, a timber-framed building, built in 1468 to redevelop. "From the outside it pleases me very well," says Kürner, "I hope that the inside and everything is done properly." As the country two years ago, the city's house in the Old Town offered to sell, waved them off. We saw no local demand, also had the restoration of Herrenküferei and Wimpelinhaus swallowed shortly before seven million euros. Purely private matter is the fruit box so far, says Kürner. A municipal employee should take a closer look at the building, "and we will evaluate the need for control of the district office will be necessary."

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Legal (4) - "inform home sellers must" (from the Süddeutsche Zeitung)

The Süddeutsche Zeitung deals in the current issue with the theme of moisture damage and the related obligation to inform the seller ( Link ).

It says:.. "Serious damage caused by moisture in the house should the owner not conceal potential buyers come to the sales contract, without having been informed, the seller is liable for the damage

, warns the German Bar Association (DAV) in Berlin, citing a ruling by the Higher Regional Court of Saarbrücken (ref. 4 U 198/07 - 64).

out, even if the purchase contract excludes any warranty, whether the seller is obliged to pay for these defects

in the fall. bought the applicants a house for 64,000 euros. Three months after the move they made massive moisture damage is in the bedroom, which continued later in the living room and children.

An expert found that the moisture came from the cellar and to calculate restoration costs in the amount of 11,000 €.

The seller refused to pay such costs. He referred to the purchase agreement, which excludes the warranty. The new homeowner then went to court and won.

According to the judges knew the previous owner had attempted to hide the damage and deceit in the sale. Therefore applies the warranty exclusion is not in this case. Buyers were aware of the obvious lack of anything, unless it be at the only visit to this cellar was crammed.

buyer should also rely on them that such damage is notified prior to contract "

source. www.sueddeutsche.de

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Press Search Teil10

Once again, the subject of insolvency of a company treated from the IMAC group in the press. In a recent article ( Link ) writes the voice from Heilbronn ( www.stimme.de ) under the heading: "Subject customers feel betrayed."

called The text: "You feel all cheated, tenants as well as homeowners The company name is driving on many of the Zornesröte face insist on the repayment of their deposits.. some, their rental demand the other. The prosecutor is investigating Stuttgart manager Matthias HEISSNER for embezzlement, fraud and Insolvenzverschleppung (reported Heilbronner Stimme). The former property manager based in Leonberg, based on requests from the Newspapers not responding, many objects had been maintaining in the region, the rent passed to the owners, manages the costs. "

writes about the fate of individual topic-customer The author Petra Halamoda continued: " S orge deposits due a rude awakening came for the elderly assisted living in the lake road 38/40 in Heilbronn-Böckingen, when the city water works announced lock. Basic: 11 000 € from the issue of standing. "They wanted us all turn in all seriousness and a water truck Introducing the door. "Sabine send the Diakonia shakes his head. "A lady has got almost the heart Kasper. . Fortunately, her daughter was there, "Ataman Turanli, Managing Director of Supply GmbH Heilbronner, admits:" This situation was a hardship. As we try everything before the water is shut off. We have endured long. Around a half years was not paid. "Diakonia shot before the money.

Another concern is the whereabouts of the deposits. The administration had put the company on a collection account set up in mid-2007 everything possible had been used on-administrator Holger Leichtle said. EUR 500 000 have disappeared.

Perplexed makes the residents of North Road 2 in Neckarsulm Teilort Obereisesheim. "I do not know what's coming," says Maria Dukart in broken German. "If the money is gone. That's not right," your neighbor, whose two children between the legs sticking out, adding: "The majority thinks the money is lost. But our landlord is a decent man. Maybe we'll get from him the 1200 €. "The amount the deep holes rips into the budget. Andreas Gastgeb mayor: "In this area, public housing are foreign citizens in the majority. A clientele that it is financially not rosy. "

had also assisted living in Böckingen not trust no one practice with the collective account. "These are old people. They do what they are told, "said Supervisor Sabine Chic. "I think that's all flutes. This makes the people to create insane. Nobody here is rich. Many need the money urgently, if they move out. " Margaret Betz (81) is angry. "The fact that the guys are not ashamed, to rob the poor. Those are character rags. "The charges were in error. 700 € fees they should pay properly were 100 €.

The man, who must untangle the mess, is the new manager Hans-Juergen Heald. For 20 years in business, the Untereisesheim "never experienced such a thing." Of the subject he has taken over houses, which for months has been no building insurance paid. Imagine the consequences if a fire had broken out. Because he "was real pressure" and threatened with criminal charges, he could the advances achieved, a total of 20 000 euros.

to some good-natured owner associations he had first to draw attention to the plight. "People are so kind in the area and can be put off," said Heald is the fact that only made a few Rabatz. Also, shame plays a role. "In addition, the all-inclusive package, with which the objects were advertised, initially went well. The owners had a guarantee for the payments, the ancient inhabitants do not usually. "Ziegler is the owner of Gertrude from other woods. "One year I have not seen any rent which received its company," says the Obereisesheim Erin. "I am the boss e-mails have bombed." Three processes they won against the theme, 8000 € to their posts. That gives her nothing. "The verdict could not be completed."

Something Wrong With My Dogs Mouth

Press Research Part 9

In a recent article attacks the Heilbronner Stimme the event and IMAC HEISSNER titled "Investor in the sights of prosecutors' . again

It reads in part: "Now Is the Leonberger, whose real estate Imac GmbH specializes in the restoration of listed buildings, apparently up to their necks in trouble . For months, the prosecution determined Stuttgart against him. for embezzlement, fraud and Insolvenzverschleppung . In three raids, including former private home in hot and two of his companies, the Imac and the subject, investigators confiscated boxes of folders. The public prosecutor confirmed on demand. The charge of Insolvenzverschleppung concerns about the company, which forwarded the rent for flats to their owners. They managed the objects of the Imac. In February 2007, had begun an investigation here, a spokeswoman for the Stuttgart prosecutors. " the beginning everything seemed relatively small, it took an ever greater scale. ""

Next the paper said..
" deposits

disappeared in weddings employed about 40 men" now works there, no one has gone dead, the company, "said Holger Leichtle The lawyer is now appointed as liquidator. Since late July, the insolvency proceedings are opened now remains to consider "whether enough mass is present, to pay court and administration" He says:... "There is nothing tangible there anymore" Just give claims it " Correct. accounts existed at the firm about not. Deposits of tenants came to a collective account, the mid-2007 Available for all used. "500 000 euro was had disappeared on security deposits.

Overall, he appraised the damage at "up to five million euros" . At the end of October, the lawyer has terminated all leases between the topic. Around 2000 he has written to creditors. The insolvency predicted: "HEISSNER liable only to the installments. He will not have to pay for this disaster, "the iMac is not affected by the matter."

to our case, writes the voice. "Matthias HEISSNER however, is also in trouble in the house renovations. Mr. and Mrs. Brandt, Freiberg am Neckar in the district of Ludwigsburg HEISSNER a property for 230 000 €'ve bought, an appraiser certifies that the improper "cheap" remediation of the old building had led to moisture damage. to eliminate this would cost around 100 000 €. The apartment terminated a deposit for the house uninhabitable, a dispute in view and looking for accommodation for which rent is payable in parallel: "This brings one to the limits," said Holger Brandt. "HEISSNER designated as the kids stuff that interested him not long ago." There is not a representation by the Imac is, hot former position. "Since he is no longer available to us."

conclusion: .. "Compared with the press raises the Imac smoke grenades responded to many inquiries to our newspaper is no longer an employee HEISSNER announced in Wimpfen the developers have changed the BW monument project mbH has jurisdiction only. The company is running at the same address . like the Imac Their manager once gave lectures on the landlord protection index - a further HEISSNER project calls are also pointless..

Source: www.stimme.de

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Legal (3) - liable for concealed defects

Source: www.ra-

heinicke.de about www.baurechtsurteile.de

" OLG Koblenz, decision of 09.02.2006, 5 U 1111/05

In the present case the plaintiff by the defendant had acquired a house. The contract was a warranty exclusion agreed. It turned out later that the basement walls were wet . was detected Due expert opinion, that this was due to poor sealing and the seller must have been known. The buyer is relying on the warranty and that he had told the buyer prior to signing the purchase contract, that this is an old Keller would act.

The OLG said the buyer of the clean-up costs to. Cause of action was for damages due to fraudulent concealment of a defect. In view of this, then the disclaimer is also not effective. Because of fraudulently concealed defects liability could not be excluded. There were a revelation subject to shortages. Deception of the seller is not a prerequisite for the claim. It is sufficient that the seller was aware or errors that he was at least possible and was tacitly accepted in that the buyer has not recognized this shortcoming would have to recognize, however, may not complete the purchase agreement. But the evidence that this is an old cellar, be for the information is not sufficient, but rather played down. The lack of outer sealing place but still represents a significant deficiency, as is likely with recurrent severe moisture damage "

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Legal (2) - reversal of a real estate purchase agreement at low defects possible

source.
lawyer Simone Scholz
Firnhaberstraße 5a
70174 Stuttgart
www.rechtsanwaltsofort.de

about www.baurechtsurteile.de

"A ruling by the Federal Court of 24 March 2006, a real estate buyer in the event of fraud now because of minor defects to cancel the purchase contract.

principle is a withdrawal from the contract due to defects of the property only be considered if the defect is negligible. After the decision, the withdrawal is now possible even with a minor defect. "Namely, if the seller has fraudulently misled about this lack," explains the lawyer Simone Scholz from Stuttgart.

In the case decided by the Supreme Court, the buyer had a property at a price of € 85,000 purchased with the exclusion of liability for defects. After handing over the apartment provided the buyer discovers a moisture damage that would cost its disposal 2,500 euros. The seller was this Moisture damage before purchase contract known. The buyer asked the seller to rectify the defect. After the seller refused, the buyer came back from the contract.

District Court and Court of Appeal dismissed the Oldenburg in order to recover the purchase price. In support led to the courts that it is in terms of low defect cost of 2,500 € is merely a serious deficiency, trade and the interests of the seller on the continued existence of the Agreement will prevail, finally, that the seller in the event of a reversal not only the purchase price, but also report the notary fees, land costs and loan costs.

Takes The court however took the view that the case be important that the seller of the damage prior to signing the purchase agreement was announced and he does have the buyer fraudulently concealed. In a fraud by the seller, he must pay for dealing with minor defects and to accept the rescission of the contract with its serious consequences. The Supreme Court based its legal opinion so that the confidence of the seller in the stock purchase agreement of the do not deserve protection if he had come by a fraudulent misrepresentation about. "

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Legal - formulaic, the exclusion of warranty claims for material defects is not always enforceable

On the www.baurechtsurteile.de found an interesting Discussion of the decision about Gewährleistungsauschluß in sales contracts for real estate. In short, it is

: "The formulaic of warranty when buying a newly constructed house - not always legally ." (Link )

Referring to the page www.rechtsanwaltsofort.de a BGH is of 8 March 2007 discussed (Ref. VII ZR 130/05), in which the related real estate sales contracts in most formula is explained in the exclusion of warranties for the vulnerable. Background is the opinion of the Supreme Court that this is formulaic Gewährleistungsauschlüsse in accordance § 242 BGB shall be subjected to a content control. " The formulaic exclusion of liability for defects in the acquisition of newly constructed houses may therefore be ineffective if the severe consequences of such an exemption were not discussed in advance between the parties in detail and the purchaser by the notary is not sustainably cautioned was. "

Further, it is called: "The seller will not discuss the basis of his own interests to the exclusion of warranty with the buyer," says Scholz. "An in-depth discussion of the contractual term between the contracting parties remain in practice so often." It is therefore crucial to the buyer that the notary has taught extensively on the implications of the warranty exclusion. In this case, the notary must draw attention to the scope of the disclaimer and the associated risk.

After the jurisprudence of the Supreme Court waive the notary of this detailed guidance required only in exceptional cases. And only if it is satisfied that the parties are fully informed of the consequences of their statements and the risks involved and are aware of the specific contracts do anyway. "Pursuant to Judgement of the Supreme Court from the 03/08/2007 BGH thereto but high requirements," said the lawyer. "So goes not after the first decision, if the notary pauses during reading of the exclusion clause, and asks if the buyer is the object seen in person and examined have. "The fact that a buyer is because of his training, the importance of a warranty exclusion principle known to relieve the notary is not detailed instruction from his duty. The notary must rather be satisfied that the purchaser is the full scope of the warranty exclusion is aware of and exclusion will still serious. "

important - and interesting for our case: "However, the requirements described in the Federal Court found the effectiveness of a formulaic Warranty exclusion applied only if a newly built building, or to allow such a building to be treated. Houses, which have, after extensive remedial measures an as-new condition, as newly built houses to treat "

Source:...
lawyer Simone Scholz Firnhaberstraße 5a 70174 Stuttgart
more information www.rechtsanwaltsofort.de

on : http://www.baurechtsurteile.de/artikel711-0.html


And more details can be found here: Link

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Now it's serious

So after our vendor is a very very generous Settlement offer have refused ... is now available in the next round. Our lawyer has challenged the sales contract (on grounds of fraud and non-observed lack of improvement).

have parallel, we notify the authority in the IMAC affair anyway active local press. I'm not sure if we provide a direct benefit in the process ... But if this other potential customers of this company and their business practices will be warned us meet that already.

Let's see ...

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The next step

Today we finally have an appointment with our lawyer. This will be to tap the opportunities we have on the way forward: explain contract null and void (§ 323 BGB), fraud efforts (§ 123 BGB) or failed repair complain (§ 440 BGB).

motto is "kicking ass". We will see ...

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Wikipedia to IMAC

Even on wikipedia.de is a summary of the IMAC affair: ( Link )