Zustandsfeststellung under § 650g BGB: when the buyer won't accept
What developers can do when the buyer refuses the Abnahme and names defects.
Ask for a joint record of the flat's condition and propose an appointment to the buyer in writing, with reasonable notice. If they stay away, you may record the condition on your own.
How does a Zustandsfeststellung work?
The Zustandsfeststellung (condition record) does not replace the Abnahme. It records how the flat looked on a given day.
- 1
Ask for it
If the buyer refuses the Abnahme and names defects, you can ask for a joint record.
- 2
Propose a date
Propose an appointment to the buyer in writing, with reasonable notice.
- 3
Cooperation
The buyer has to take part in the joint record.
- 4
Record alone
If the buyer stays away, you may record the condition on your own.
- 5
Form
Date and sign a one-sided record and make a copy available to the buyer.
- 6
Every room
Record the condition of every room, not just the defects named.
Why this matters
Under § 650g Abs. 3 BGB, an obvious defect missing from the Zustandsfeststellung is presumed to have arisen afterwards, if the flat had already been handed over to the buyer. This does not apply if, by its nature, the buyer cannot have caused the defect.
General information, not legal advice.
Frequently asked questions
Is the flat accepted once the condition is recorded?
No, the record only captures the condition. Whether the buyer has to accept the flat is still governed by § 640 BGB.
Which defects does the presumption cover?
Only obvious defects missing from the record, and only once the flat has been handed over. It does not cover hidden defects or ones the buyer cannot, by their nature, have caused.
What if the buyer does not turn up to the appointment?
Then you may record the condition on your own. Date and sign the record and make a copy available to the buyer.
Also in this topic: Handing a new-build flat to the buyer: a guide for developersRecording neighbouring buildings before constructionAll guides: New builds & the Abnahme
Next handovers coming up?
Record the condition of every room in full at the appointment. BildProof takes your team through every unit the same way and creates a structured condition report.
See BildProof for developers