Germany Update: Foreseeable Obstacles in the Event of a Lack of Coordination Between Planning and Development Plan

Problem

Too many cooks spoil the broth – especially if they don’t check whether they are following the same recipe. A project development company (defendant) and the architectural firm commissioned by it with the approval planning (plaintiff) had to learn this in the decision of the KG recently confirmed by the Federal Court of Justice (decision of 21.08.2024 – VII ZR 237/22) in connection with the planning of a residential and commercial complex for the island municipality of L. In addition to the plaintiff, the defendant had commissioned another architectural firm to draw up a corresponding project-related development plan, which had made current draft versions available to the parties involved. It was only during the building permit procedure that it became clear that the building documents and the development plan differed from each other in various points and that the project would therefore only be approvable after the building application had been comprehensively revised. In its action, the plaintiff seeks compensation from the defendant for this additional expense, while the defendant in turn claims against the plaintiff because it had already sold corresponding residential and commercial units to customers and now had to pay them damages. With its decision, the KG clearly rejected both claims.

Legal assessment

In the opinion of the KG, an architect owes a “permanently approvable planning service” and can only demand the agreed remuneration for this, even if replanning has to be carried out in order to achieve this service success. Irrespective of a corresponding fault, an architect must point out foreseeable obstacles, risks and legal difficulties. Even if it is generally reasonable to rely on the fact that a project-related development plan drawn up on the basis of one’s own drafts would be adapted to this project, it is nevertheless to be expected of an architect that he actually checks the planning drafts made available to him for this purpose for any deviations. Repeat services that could have been avoided if the examination had been duly carried out are not to be remunerated separately, but are to be compensated with the agreed fee.

Conversely, the defendant did not have a claim for damages against the plaintiff because it not only had the draft plans at its disposal when the building units were sold, but was also informed about the objections in the context of the approval procedure and had nevertheless not informed the purchasers of the existing uncertainties and risks. This was an independent breach of duty on the part of the defendant that was not attributable to the plaintiff, so that the plaintiff would not have to be liable for it even if it had deceived the defendant about the possibilities of realizing the original planning.

Implications for practice

The decision, which corresponds to the established case law of the Federal Court of Justice with regard to the requirements for the approvability of planning, shows once again the increased standards of care that case law imposes on architects. As far as the predictability of risks is concerned, “trust is good, control is better”. Existing material must also be checked as a matter of principle. An objective standard applies. Appropriate knowledge of public building law is required. Any doubts and risks must be communicated. If necessary, expert advice must be consulted. Conversely, the advice of an architect does not release you from your own responsibility.

This article was first published in ImmobilienReport Metreopolregion Rhein-Neckar, issue 188.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germany@transatlanticlaw.com

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