Expert article
The defect notice: short, specific, provable
Most defect notices fail not because of the defect but because of the form. Set no deadline, or fail to prove receipt, and you hold nothing in legal terms.
Expert article by Open Experience GmbH. · As of: August 2026
What is a defect notice?
A defect notice is the client's demand that the contractor remedy a defect within a set deadline. Before acceptance it rests on § 4 para. 7 VOB/B (the German construction contract procedures), afterwards on § 13 para. 5 VOB/B or on the demand for subsequent performance under § 634 no. 1 of the German Civil Code. It must describe the defect so that it can be found, name a reasonable deadline, and demonstrably reach the contractor — only then do the legal consequences begin to run.
The building blocks of an effective notice
Six items without which a notice is open to attack. They do not replace a form — as a checklist before sending, they have proven their worth.
| Building block | What it contains | Why |
|---|---|---|
| Recipient and contract reference | Company, project, contract or lot | Assigns the notice to the right contract |
| *Description of the defect* | What can be seen, exactly where, since when | The defect has to be findable, not explained |
| Location and evidence | Storey, grid line, room, position on the plan, photo | Makes the finding verifiable |
| *Demand for remedy* | An express request for rectification | A mere observation is not a notice |
| Reasonable deadline | A specific calendar date instead of "promptly" | Without a deadline, self-remedy and further rights never start |
| Date and sender | Who gives notice when, with proof of receipt | The deadline runs from receipt |
Legal basis: § 4 para. 7 and § 13 para. 5 VOB/B, §§ 634 ff. of the German Civil Code.
You do not need to know the cause
The most common misconception is that a notice is only possible once the cause is established. The opposite is true. Under settled case law it is enough to describe the symptom — how the defect shows itself. Which cause lies behind it, and which trade is answerable for it, is not for the client to determine.
- This is enough"Basement, grid line C/4, dark damp patches on the inner face of the external wall, first observed on 12 August 2026."
- This is not"The waterproofing was installed defectively." That is a judgement which would have to be proven in a dispute — and it commits you to a cause that may turn out to be wrong.
- The practical benefitThe notice covers every cause that could produce this symptom. Name the cause and you needlessly narrow your own notice.
The deadline — specific, not "prompt"
A reasonable deadline is one within which an averagely capable firm can remedy the defect. It follows the effort involved, not the client's impatience. What matters is that a specific date is named.
- Too short is not invalidA deadline set too tightly does not void the notice — as a rule it triggers the reasonable period instead. It is not something to rely on.
- Imminent dangerWhere consequential damage threatens, the deadline may be very short; the urgency then belongs in the notice itself.
- What becomes possible once it expiresOnly then do self-remedy at the contractor's expense (§ 13 para. 5 no. 2 VOB/B, § 637 BGB), price reduction or rescission come into play at all.
Receipt beats dispatch
The deadline runs from receipt by the contractor, not from dispatch. In a dispute the client bears the burden of proving that and when the notice arrived — the hurdle most often underestimated in practice. The extension of the limitation period under § 13 para. 5 no. 1 VOB/B likewise hangs on receipt.
An email proves dispatch, not delivery. What holds up is what documents receipt: an acknowledgement, handover against signature, registered post — or a system in which the contractor opened and confirmed the notice.
The five most common mistakes
Bulk notice without allocation
Thirty defects in one list, not one of them described individually — in a dispute the whole notice falls apart.
No deadline
"Please rectify shortly" is not a deadline. No date, no legal consequence.
Cause instead of symptom
Commits the notice to a theory that may prove wrong.
Receipt not evidenced
The email in your sent folder proves nothing about delivery.
Verbally on site
The classic. Under § 13 para. 5 VOB/B, written form is the precondition for the extended limitation period.
Better
One defect, one record: description, location, photo, deadline, recipient and receipt in the same place.
Notices that document themselves
With Construction Defects the defect notice grows out of the defect that was recorded anyway: description, position on the plan and photo are already there, the deadline is set, the contractor receives the notice in their own account — and the system records when they opened it. The VOB-compliant notice as a PDF is produced at the push of a button, from the same content.
Frequently asked questions
Does a defect notice have to be in writing?
For the extended limitation period under § 13 para. 5 no. 1 VOB/B, yes. Beyond that the rule holds: what cannot be evidenced did not happen, as far as a dispute is concerned.
Is an email sufficient?
As text form, generally yes. The problem is not the form but proving receipt — secure that separately.
How long may I wait before giving notice?
Until the limitation period expires. Where consequential damage threatens, however, delay may amount to contributory fault; between merchants the duties to inspect and give notice under § 377 of the German Commercial Code also apply.
What if the contractor disputes the defect?
The deadline runs regardless. Once it expires without result, self-remedy, price reduction or independent evidence proceedings come into consideration — for all three the documented notice is the starting point.
Must I give notice of each defect separately?
You may combine several defects in one letter, but each has to be described so that it can be found on its own — and each needs its own deadline.
Does this apply before acceptance too?
Yes, then via § 4 para. 7 VOB/B: the contractor must replace, at their own expense, work recognised as defective already during construction.
The notice that grows out of the defect.
In 45 minutes we show the path from the photo on site to the delivered defect notice — with the deadline running and receipt on record.