Acceptance of the common property: the most common pitfalls

In a new build there is one appointment whose effects last for years, and it often takes no more than a morning: the acceptance of the common property. Buyers who prepare for it keep the construction quality of their building under control. Those who wave it through carry the consequences themselves afterwards.

Acceptance reverses the burden of proof

Two things happen at the moment of acceptance. First, the limitation period for defect claims starts to run; for buildings it is five years (Section 634a of the German Civil Code, BGB). Second, and most buyers underestimate this, the burden of proof is reversed. Before acceptance, the property developer has to prove that the building work is free of defects. Afterwards, the owners have to prove that a defect exists, at their own expense and usually with an expert report.

Just as important is the separation: individually owned units and the common property are accepted separately. Your apartment is one thing. Roof, facade, staircase, basement and all the building systems are another. Many buyers walk through their apartment with the site manager, sign a report and consider the matter settled. What they have actually discussed, however, is only their own four walls. The expensive building components are still outstanding.

The four most common pitfalls

• Acceptance by a third party. Some purchase contracts provide that a surveyor appointed by the property developer, or the initial property manager, declares acceptance of the common property for all buyers. Such clauses are frequently invalid, because whoever declares acceptance should not depend on the party that did the building. If your contract contains such a clause, that is no reason to panic, but it is a reason to have it reviewed.
• Implied acceptance. Acceptance does not necessarily require a signed report. Buyers who move in, pay the final installment and raise no objections for months may later be told that their conduct amounted to acceptance. So state explicitly what you are doing and what you are not yet doing.
• Acceptance without your own expert. The people on the other side of the table are professionals. A layperson asked to assess basement waterproofing, a ventilation system or a roof structure is in an unequal conversation.
• The late buyer. Buyers who purchase an apartment only after acceptance are often expected to be bound by the acceptance of the common property that has already taken place. Here too, it pays to look at the contract before signing.

Your own expert pays off

The solution is refreshingly unspectacular: the buyers commission their own construction expert, who inspects the common property before acceptance and records the defects. The fee is a fraction of what an overlooked defect in the roof or the waterproofing costs later, and it is shared among all owners. For each individual party that leaves a manageable amount, set against a shared benefit for the entire building.

The real effort lies elsewhere: someone has to bring the buyers together before each of them signs individually. That is exactly the job of a property management company with new build experience, and the question of how it organizes the acceptance belongs in the very first conversation. Which resolutions your condominium owners' association (WEG) needs for this and which majorities they require is explained in our guide WEG and the law. Everything else that comes together in an owners' association is summarized in our WEG basics guide.

And one more reassuring note: the acceptance is not a vote of no confidence against the property developer. It is a normal step in a construction project, and reputable developers know the procedure, work through the list and have their own interest in a clean final report.