19.03.2020

Acceptance of the building despite corona: obtaining the final acceptance certificate without an on-site appointment with the construction supervisory authority

Background

If the site manager or the client fulfils his obligation to notify the completion of his building, the use of the building can generally be commenced one week after completion. It becomes problematic, however, if the construction supervisory authority insists on a building inspection date but will not perform such a building inspection in the foreseeable future. At present, this can happen in particular if the construction supervisory authority no longer inspects building sites due to COVID-19. However, a building inspection can also take place without an on-site inspection by the construction supervisory authority. One possibility here could be to call in an expert.

The inspection of the building condition by construction supervision

According to Section 84 (1) of the Building Regulations of the Land of North Rhine-Westphalia (BauO NRW), the construction supervisory authority is generally obliged to carry out an inspection of the condition of the building, insofar as the project is subject to the normal approval procedure. In order to enable it to inspect the condition of the building, the site manager or - if a site manager has not been appointed - the client must notify the construction supervisory authority of the final completion of the work one week in advance in each case (Section 84 (2) sentence 1 BauO NRW). The site manager or client is obligated to notify the authority. The intentional or negligent omission of the notification constitutes an administrative offence which may be punished by a fine of up to EUR 100,000 (Section 86 (1) No. 17 BauO NRW in conjunction with Section 86 (3) BauO NRW). The authority should therefore be notified in any case, even if the construction supervisory authority cannot or will not carry out an inspection of the building condition in the near future.

In principle, the use of the respective facilities can begin one week after the date of completion stated in the notification (Section 84 (8) sentence 1 BauO NRW). However, the authorities can require the client to use the facilities only after they have been inspected by them (Section 84 (7) BauO NRW). The premature use of the building against this request also constitutes an administrative offence subject to a fine (Section 86 (1) No. 18 in conjunction with Section 86 (3) BauO NRW).

Final acceptance by an expert

However, the inspection of the building condition does not necessarily have to be carried out by the construction supervisory authority itself. In this respect, an examination by a state-approved expert is also possible. The construction supervisory authority can generally commission a person to fulfil this task on the authority’s behalf at the expense of the client (Section 58 Para. 3 BauO NRW).

After the inspection of the structural facilities, the expert shall provide the construction supervisory authority with information on the tests carried out and submit the relevant documents to it. When the public-law regulations are examined by a state-recognised expert, it is assumed that the requirements of the construction supervisory requirements are fulfilled in this respect. As far as no defects were found by the expert, the construction supervisory authority can therefore issue a final acceptance certificate.

The inspection of the building condition by an expert therefore offers a good opportunity to obtain the final acceptance certificate even without an on-site visit of the construction supervisory authority.

Author
Denise Helling

Denise Helling
Senior Associate
Dusseldorf
denise.helling@luther-lawfirm.com
+49 211 5660 18737