Abnahme is not just getting the keys: defects checks for a new-build apartment

When you buy a new-build apartment from a developer (Bauträger), acceptance (Abnahme) is a legal declaration that the work is essentially as contracted. The keys only give you possession. Acceptance starts the five-year limitation period for defect claims, shifts the burden of proof onto you and can cost you rights over defects you saw but did not reserve. Treat the appointment as a contract step: bring an independent construction expert (Bausachverständiger), record and reserve every defect in writing, and remember that the common property (Gemeinschaftseigentum) is accepted separately from your own unit.

For the administrative side of taking over (meters, service charge, documents), see the handover checklist.

A developer contract combines construction with a land purchase. Work-contract law governs the construction and sales law the transfer of the land (§ 650u(1) BGB). That is why a new build has an Abnahme at all.

Acceptance can happen without a signature. If the developer sets a reasonable deadline after completion and you neither accept nor refuse by naming at least one defect, the apartment counts as accepted. For a consumer, this applies only if the developer warned of that consequence in text form with the request (§ 640(2) BGB). A private individual buying one apartment to let is generally a consumer (§ 13 BGB); check with your lawyer if you buy through a company.

Conduct counts too. The Federal Court of Justice (BGH) has confirmed that taking a building into use can amount to implied acceptance, depending on the circumstances (BGH, 12 May 2016, VII ZR 171/15, para. 52). Moving a tenant in is not a neutral act.

You may not refuse acceptance because of insignificant defects (§ 640(1) BGB). For those, accept with reservations. None of this replaces a lawyer's reading of your contract, which may set its own acceptance procedure.

A condominium apartment combines your unit (Sondereigentum) with a share in the common property: the land and every part of the building not in separate ownership (§ 1(2), (5) WEG). Parts needed for the building's structure or safety are common property even inside your apartment (§ 5(2) WEG): the roof, façade, load-bearing walls and shared pipes. Windows and the balcony door are usually treated the same way. The declaration of division (Teilungserklärung) shows the allocation.

Each buyer accepts both. The BGH treats every buyer as the client for the common property too, entitled to decide on its acceptance personally, with expert advice if wanted, or through a trusted person of their choosing (VII ZR 171/15, para. 45). Your unit is usually inspected at handover; the common property often months later, once the building and outdoor areas are finished.

Read the acceptance clauses before signing and again before handover. The BGH has held these standard clauses invalid:

• acceptance of the common property by a first administrator (Erstverwalter) the developer can appoint, because of the risk that such an administrator will not check neutrally (BGH, 12 September 2013, VII ZR 308/12), including a subsidiary of the developer (BGH, 9 November 2023, VII ZR 241/22);
• binding later buyers to an acceptance an engineering firm had declared before they signed, which also shortened their limitation period indirectly (VII ZR 171/15).

The Stuttgart Higher Regional Court has also held invalid a clause handing acceptance to a sworn expert to be elected by the owners' meeting (OLG Stuttgart, 6 June 2024, 13 U 419/19). Where such a clause fails, the common property may never have been validly accepted, so the limitation period may not have started, and the developer cannot rely on the missing acceptance to resist defect claims (VII ZR 241/22). That protection arrives through litigation, years later. Better to take part in the common-property acceptance, yourself or through an expert you appoint, and ask your lawyer whether to revoke any acceptance power of attorney in the contract.

The developer's site manager leads the walk-through and writes the record. You need someone on your side who can recognise a defect, judge whether it is significant and describe it precisely. Choose an expert with no link to the developer. Publicly appointed experts are sworn to work independently and impartially (§ 36(1) GewO) and are listed in the chambers' expert directory (SVV, German). Buyers in one building often hire a single expert for the common property, each authorising them individually.

A defect is measured against the contract: the work must have the agreed quality (§ 633(2) BGB). Your expert therefore needs the notarised contract, the building description (Baubeschreibung), plans and any agreed extras (Sonderwünsche); see what a building description includes.

Alpha Minoris's Buyer's Agent service can coordinate the acceptance appointment for purchases in Berlin, Dresden or Leipzig: agreeing the date with the developer, sending your expert the contract, specification and plans, and filing the signed record and photographs. You need not live in the city. It does not carry out a technical inspection; that is the expert's job, and the legal assessment is your lawyer's. Its mandate runs until the keys, so a common-property acceptance months later needs its own arrangement.

Before the appointment

During the appointment

After the appointment

Illustrative example. Fictional figures. Apartment B: Leipzig, 50 m², bought off-plan from a developer for €250,000; contract notarised Thursday 6 March 2025. The contractual completion date is 1 November 2026, a Sunday, when possession, benefits and burdens pass. The developer's letter of Friday 16 October 2026 invites the buyer to the unit acceptance on Friday 30 October 2026 and includes the text-form warning. Cost estimates are the buyer's expert's; the remedy deadline is four weeks.

The unit is accepted on 30 October 2026 with all four reservations. Items 2 and 4 are recorded now to preserve the evidence and raised again at the common-property acceptance.

Reserve. Every visible defect goes on the record as reserved, signed by both sides, plus any agreed penalty for late completion.

Refuse only for significant defects. If you refuse, naming defects, the developer can ask for a joint record of the apartment's condition; if you miss that appointment without good reason, it can make the record alone. Once you have the apartment, an obvious defect missing from the record is presumed to have arisen later and to be your responsibility, unless it cannot have been caused by you (§ 650g BGB).

Withhold with advice. Where you can demand that a defect be put right, you may refuse an appropriate part of a payment that has fallen due, normally twice the remedy cost (§ 641(3) BGB). For items 1 and 3 in the example, that is 2 × €750 = €1,500. This is a statutory benchmark, not an instruction: agree any deduction with your lawyer, including whether common-property defects justify one.

Know which instalments remain. Under the Real Estate Agents and Developers Ordinance (MaBV), the remaining 70 per cent of the price after the first instalment is split into stage shares of that remainder, including 12 per cent after readiness for occupation in exchange for possession, 3 per cent for the façade and 5 per cent after full completion (§ 3(2) MaBV). For Apartment B, that is €21,000, €5,250 and €8,750. Our new-build comparison groups the first two (€26,250) at handover; the last follows full completion, assumed in March 2027. These are payment stages, not acceptance. See Bauträger payment plans.

1. Set deadlines in writing (here, Friday 27 November 2026) and ask for appointments.
2. Check remedies with your expert before signing anything off.
3. Escalate through your lawyer if deadlines pass. Self-remedy, price reduction and damages each have their own conditions (§ 634 BGB).
4. Diary the end dates. The unit's five years end with 30 October 2031. If the common property is accepted on Monday 1 March 2027, its period ends with 1 March 2032 (§ 634a BGB; § 187(1), § 188(2) BGB). Book an expert inspection about six months before the first date. For a fraudulently concealed defect, the regular period applies, never ending before the five years.
5. Report common-property defects to the administrator and follow the owners' meetings. In the 2023 BGH case, the owners' association pursued the claims on the buyers' behalf (VII ZR 241/22).

If the developer's finances worry you, the questions in assessing the developer apply here too.

Once the apartment is let, Vermieter-Autopilot can follow up defects inside the unit within the agreed mandate, arranging tenant access for the developer's contractors and chasing appointments. The claims stay with you and your lawyer.

Before your acceptance date, line up the contract, the building description and an independent expert. Discuss your first rental property with Alpha Minoris.