The BGH decides: Five-year limitation period for defect claims for photovoltaic units installed on the roof of a tennis hall
> December 2016
The VII civil senate of the BGH has decided a photovoltaic system installed on the roof of a tennis hall is to be considered a building structure so that the two-year limitation period for deficit claims does not apply but the limitation period of five years (BHG decision dated 02.06.2016 – ZR 348/13).
The case the BGH decided upon was about a photovoltaic system which had been retrofitted to the roof of a tennis hall. The question whether the installed photovoltaic system was to be considered a building structure was decisive. This is because for building structures a longer limitation period of five years applies for deficit claims (article 634 a section 1 no. 2 BGB).The VII civil senate came to the conclusion that a photovoltaic system which was retrofitted to the roof of a tennis hall was to be considered a building structure if they photovoltaic system was permanently installed for continuous use, the installation signified a complete renewal of the tennis hall which equals a new construction and the photovoltaic system serves the tennis hall by fulfilling a function
for it.
According to the BGH, the installation of the photovoltaic system is to be considered equal to a partial new construction of the tennis hall as in the course of the installation of the photovoltaic system significant modifications were made to the roof and the building's exterior. These were necessary to be able to install the photovoltaic system in a windproof way and guarantee the resistance to weather and the statics of the building. Through the multitude of components installed the photovoltaic system is connected to the tennis hall in such a way that its separation from the building is only possible with significant effort. According to the BGH, this constitutes the typical risk situation which causes the legislator to provide for a limitation period of five years for a building. The installed photovoltaic system also fulfils a function for the tennis hall as the tennis hall is due to an extension of function to also serve as the carrier object for photovoltaic units. It is not important that the photovoltaic system does not serve for the power supply of the tennis hall.
It has to be noted, however, that the VIII civil senate of the BGH has come to a different conclusion in a similar situation. The VIII civil senate of the BGH has not considered photovoltaic units on the roof of a barn a building structure. It is to be hoped for the constructors of photovoltaic system that the positive decision of the VII civil senate of the BGH prevails as deficits of photovoltaic units often do only appear until after two years and a short two-year limitation period would therefore be a big disadvantage.
