Building is expensive. It is not only the higher costs of land, materials and financing that are driving up construction costs, but above all technical standards and the associated liability risks.  This applies to housing construction as well as local authority building projects, commercial developments and social infrastructure. The Federal Ministry of Justice and Consumer Protection wants to make building more affordable again. It has therefore presented a draft bill for a basic statutory standard, known as ‘Building Type E’. The draft aims to ensure that needs-based and more cost-effective standards can be agreed upon more easily and with legal certainty.

The aim of building type E is not to create a new building class or to lower safety requirements. Rather, it is intended to bring the civil law standard more into line with the required standard of construction quality.

High technical standards for security

Under current law, the absence of defects is initially determined by the quality agreed in the contract. In the absence of a specific agreement, the technical standard customary for comparable buildings is generally required. This generally includes the generally accepted rules of technology. Public building law, on the other hand, may impose less stringent requirements. Whilst a deviation from the usual standard under civil law is therefore possible, it must, as things stand, be agreed and explained with particular care. Many parties therefore, as a precaution, adhere to high technical standards, even if these are not necessary for the specific use in question.

This is where Building Type E comes into play. In future, the parties to a building contract for the construction, restoration or conversion of a building or part of a building should be able to agree in writing that the statutory basic standard applies. This covers only buildings in the strict sense of the term; walls and bridges are therefore excluded. The regulatory framework is also intended to apply to architects’ and engineers’ contracts, as well as to property development contracts.

Difference between minimum requirements and quality targets

In future, compliance with the relevant Technical Building Regulations of a federal state will also determine whether a defect exists in the civil law sense. This applies in particular to requirements relating to structural stability, fire safety, noise, thermal and health protection, as well as safety in use. A higher standard remains possible, however, but must then be expressly agreed. If, for example, a building is to have sound insulation that exceeds the requirements of the Technical Building Regulations, this must be included in the specifications.

For features not governed by technical building regulations, the usual quality standard is, in principle, to remain the guiding principle. The draft bill cites interior fittings, electrical installations and external façades as examples. However, it is to be made easier to deviate from these standards in future: a clear, prominent notice in writing, specifying the particular features from which the building deviates, will suffice.

The draft thus makes it easier to agree on a lower standard or one with a different structure. However, it does not relieve the parties involved of the obligation to clearly define the quality required. What is crucial is not only the standard the parties wish to achieve, but also which requirements are deliberately excluded from the obligation.

Building type E does not alter public building regulations

Building Type E relates exclusively to civil construction contract law. The minimum requirements under building regulations remain unchanged. It creates neither exceptions to technical building regulations nor a new basis for the granting of planning permission. The admissibility of a project under planning law must also continue to be assessed without restriction. This applies in particular to compatibility with the local development plan, site servicing, issues relating to pollution control and environmental protection, and, where applicable, regional planning objectives. Where a project is intended to deviate from technical building regulations, such a deviation must be permissible and authorised under the relevant state building regulations.

This distinction is particularly important for local authorities: Building Type E may affect the quality required under the contract, but it does not affect the legal admissibility of a project under public law.

New scope for local authorities and project organisers

The draft could open up new scope for local authorities and project developers. This applies in particular to housing developments, administrative buildings and similar standard structures. In future, requirements can be distinguished more clearly according to whether they are necessary for safety, regulatory compliance and specific use, or whether they primarily relate to a standard level of comfort and fittings.

However, Building Type E must not be regarded as a one-size-fits-all cost-saving model. The minimum standard laid down in building regulations is no substitute for careful needs assessment. This applies in particular to schools, nurseries, care homes and buildings with specific requirements regarding acoustics, accessibility, hygiene, ventilation or operational procedures. Whether a simpler design is appropriate always depends on the building’s use, its user group and the operational concept. If quality requirements are scaled back without a robust needs analysis, there is a risk of subsequent conflicts over use, additional works or disputes over defects.

Procurement and contractual practices are therefore of particular importance. General references to „simple construction“, „reduced fittings“ or „Building Type E“ are unlikely to suffice. The specifications, plans and contract must clearly indicate the required standard of work and the specific ways in which the project deviates from the usual standard.

Project developers operating across regions must also bear in mind that technical building regulations are governed by regional law. The basic standard under civil law may therefore vary depending on the location of the building.

Greater creative freedom, but without compromising on planning

The draft bill addresses a practical problem. Legal uncertainty under civil law regarding deviations from standard practice can hinder cost-effective and innovative construction methods. Referring to the Technical Building Regulations is therefore, in principle, appropriate. It safeguards the protective requirements under building regulations whilst at the same time providing greater clarity for the contracting parties.

However, the regulation will not completely prevent disputes. Even in future, there may be disagreements as to whether a reference to a deviation is sufficiently clear, or as to what standard is customary for comparable buildings. Precise planning and transparent documentation therefore remain essential. Building type E can only reduce construction costs in the long term if the chosen standards are appropriate to the building’s use, location and operational concept. The legal simplification is no substitute for robust project management.