Reservation of Defects in the Acceptance of Construction Services: The Architect’s Responsibility

During the acceptance of contractor works, an architect must ensure that reservations are made for known defects at the time of acceptance, in accordance with § 640 Para. 3 BGB (German Civil Code).

Contractual Obligations and Architect’s Liability

The architect is liable for breaching contractual or other obligations. This responsibility extends beyond the supervision of work to include invoice verification and additional duties imposed on the architect in phase 8 of the service.

Practical Case: Defects Not Adequately Considered

According to a judgement by the Higher Regional Court of Frankfurt a. M. (judgement of 25.04.2022 – 29 U 185/20), an architect commissioned in phase 8 accepted parquet flooring work on behalf of the building owners. He was aware that the execution at the door threshold was optically defective – with the apartment door closed, the parquet in the hallway was visible. Despite this knowledge, the architect did not reserve the rights for defects as per § 640 Para. 2 BGB (former version). The contractor denies the defect, leading the building owners to claim damages from the architect. The Higher Regional Court of Frankfurt confirmed this claim: the architect should have declared a reservation of defects on behalf of the building owners or, at least, advised the building owners to make such a declaration themselves.

Note on Authorization and Reservation Declaration

Jurisprudence (Higher Regional Court of Düsseldorf, judgement of 12.11.1996) has established that an architect may only issue an acceptance declaration to the construction company on behalf of the building owners if he is explicitly authorized to do so. Nevertheless, the architect must ensure that a reservation declaration for possible contractual penalty claims by the building owner is made during acceptance – either by himself if duly authorized, or by the building owners (cf. Higher Regional Court of Saarbrücken, judgement of 03.04.2007 and Federal Court of Justice, judgement of 26.04.1979). The Higher Regional Court of Frankfurt recently confirmed the necessity for the architect to reserve defect rights for known defects at the time of acceptance (§ 640 Para. 3 BGB current version). Without such a reservation declaration at acceptance, defect rights (but not claims for damages) may be lost (cf. Higher Regional Court of Jena, judgement of 06.03.2013).

Specific Relevance for Simpler Craftsmanship

The violation of duty by the architect at acceptance is likely to be particularly relevant when the architect is not already liable to the building owner due to faulty construction supervision. This is usually the case for trades with simple, standard craftsmanship since the architect does not necessarily have to prevent the occurrence of defects; a subsequent check is sufficient. However, if the architect then omits to declare the necessary reservation concerning such a defect discovered during a check at acceptance, and the contractor then refuses defect rectification, a corresponding claim for damages against the architect is likely to be justified.