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Court claim for an unknown amount of money

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Posted

Perhaps some of the more legally experienced Toytowners can help here (my lawyer is being somewhat noncomittal). Sorry about the length and amount of detail.

 

I bought a house a few years ago, it's a terraced house and shares a drain with the neighbouring property. I recently found out from that neighbour that the drains are defective and need replacing. There is an inspection report to that effect, and copies of correspondence between my neighbour and the former owner (including between lawyers and per Einschreiben) predating the date of the contract. Naturally we were not informed by the vendor, but as a result of this paperwork have a cast-iron case to claim the replacement costs. They are denying the claim, so next stop is the Landgericht.

 

The problem is, we only have a vague idea of what those costs will be. The neighbour reckons on €40,000 (i.e. €20,000 each as the drain is shared). I know these things can be expensive, but that feels like at least double what my layman's guess at costs would be.

 

Relations were strained (to say the least) between my predecessor and neighbour, and while that means the neighbour is really happy to help me with paperwork and statements to "get at" them, I'd be concerned that he is also inflating this cost estimate (which was never provided in writing) for purposes of revenge.

 

That at the moment is all we have to go on. Because of Verjährung, I have to sue the former owners this year but the neighbour wants to do the work in 2014 - I don't want to force that issue, so we have to start the case somewhat in the dark in terms of costs.

 

According to the lawyer that is easy enough - we have two parts to the complaint, one for some fixed sum of money based on our estimate (which we also fix as the vorläufiger Streitwert), to be supported (and potentially adjusted) on the basis of a Gutachten performed by the court as part of the case. The second part is a "Feststellung" that the vendor should pay additional costs if they turn out higher in the end.

 

So, if the Gutachter comes along and says his estimate for my costs is €18,000, I'm not worried. We're close enough. However, if he says my costs are going to be €6,000, it might appear to the court that we are taking the piss. I am convinced the claim is valid, and the evidence extremely strong (I wouldn't be paying huge legal fees for this otherwise), but do I risk having a valid claim thrown out, rather than being reduced by the court to the true level, if there is a massive discrepancy between our cost guesstimate and the Gutachten?

 

Is this risk high enough to warrant getting quotes (at expense) prior to initiating the claim in court?

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Posted

I would get a quote before you approach the court, you cannot claim unknown damages, you will need documentation.

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Posted

You need to do an action by stages (Stufenklage), i.e. first obtain a judgment of obligation, then a judgment of payment, generally based on an estimate by an expert. This way you do not waste money on expert fees without being sure that the respondent actually is obliged to cough up the dough.

 

 

Die Stufenklage, geregelt in § 254 ZPO, ist ein Sonderfall der objektiven Klagehäufung. ... Damit ist dann beispielsweise die Verjährung eines Zahlungsanspruchs, dessen genaue Höhe noch unbekannt ist, gehemmt (§ 204 Abs. 1 Nr. 1 BGB).

 

Action by stages is a special case of "clustered" claims. ... The statute of limitations of a payment claim whose exact amount is unclear is estopped.

This means that in the first stage the respondent's obligation to pay is verified and, if this claim is successful, a second judgment regarding the amount to be paid is found. The statute of limitation is estopped until the second judgment becomes effective. The statute duration does not begin anew, however; it continues where it was at the time that the claim was raised.

 

If the duration of the statute is e.g. three years, and two and a half years have passed you have to lay claim to payment within six months of the second judgment.

 

This is what your lawyer is talking about.

 

Disclaimer: I am not a lawyer. Please have all legal advice you receive here verified by a legal professional.

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Posted

Firstly, thanks for the highly informative responses so far.

 

This won't be a Stufenklage, at least as currently constituted. The Klageschrift (I only have a draft, and have suggested some changes - we haven't put the complaint in yet) is in 3 parts. The first for a fixed 20 grand (read on), the second is to do with costs, the third is a "Feststellung" that the respondents are responsible for costs in excess of 20 grand if final costs are in excess of 20 grand.

 

We don't have proof of costs, and admit such in the Klageschrift. We propose to substantiate these costs with a "Sachverstaendigergutachten". As such, €20,000 is set as the "vorlaeufiger Streitwert". I assume this means that the Streitwert will be determined by the court (and probably on the basis of this Gutachten). Except for the fact that the Streitwert influences lawyer fees, which I might have to meet in full if I lose, I don't care what the Streitwert is - I care how it might play out in court if we turn up saying "this is gonna cost 20 grand", but it turns out the costs are substantially lower.

 

Now, we could go and get some cost estimates now, take some precious Urlaub and get some drainy people to come along, scratch their balls in my front yard, and charge me several hundred euros each to pontificate on the hypothetical cost of replacing these drains in 2 years time and write an Angebot to that effect, for various different constellations of replacing the drains according to 50 year-old Bauvorschriften and what the local Bauamt would let you do today. But we know the respondents are tricky people who will dispute any and every cost estimate we come up with - so we are going to have to get the court to do it anyway. So why bother? Other than the risk of losing the case, or losing a lot of money, if this piemal Daumen estimate of 20 grand is vastly wrong.

 

===

 

I agree things before the court are in the lap of the gods, but we do have a registered letter sent by the neighbours lawyer, 18 days before we signed the contract, informing the sellers the drains were messed up. Difficult to dispute. Though I have no doubt the former owners will dispute it, and probably stand up in court and say "we were on the moon, on holiday, and got back 5 milliseconds before the Notartermin, and didn't check our post, which the dog ate anyway. And we call our daughter as witness that she read the letter in our absence and fed it to the dog before we got back. After burning it. And deliberately decided not to tell us until we sold the house.". I am equally confident this argument isn't going to cut much ice with the judge.

 

So I am as sure as one can be, that we have a claim that the vendors behaved fraudulently and we can (at the very least) get these costs back off them. Hell, if we wanted to back out of the contract the Bundesgerichtshof has given us more than enough ammunition.

 

I also understand the lawyer wanting to cover his ass, and the potential conflict of interest arising from this damnfool Bismarck-legacy Kostenordnung rather than me just paying him for his valuable time. A Vergleich would be on condition of the respondents covering my legal costs because of the high certainty I have of success if we were to proceed to a streitiges Verfahren.

 

@PandaMunich, our opponent's lawyer will not agree to higher costs than are actually incurred - and I don't want them to. I am not in this to make a profit, merely to have the final costs (plus laywer and court costs) compensated for. He is representing his client's interests so won't be looking to agree to pay more than they have to anyway.

 

I know these guys will argue every possible point, no matter how surreal. Our neighbour has already secured judgment against them in a drains-related issue (for a much smaller amount), and the judgment, particularly the "Aussichtslosen" arguments deployed by the former owners make extremely entertaining reading.

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Posted

 

@PandaMunich, our opponent's lawyer will not agree to higher costs than are actually incurred - and I don't want them to. I am not in this to make a profit, merely to have the final costs (plus laywer and court costs) compensated for. He is representing his client's interests so won't be looking to agree to pay more than they have to anyway.

 

I didn't say that you will get more money, just that the lawyers will charge as if you had received more money, i.e. they will keep that high Streitwert for as long as they can.

And I have a hunch that your opponent's lawyer will play along just fine, since it's also in his pecuniary interest, after all lawyers have to live off something, just like everybody else.

Just wait and see...

 

And please report back with the progress, I'm curious how it will turn out :)

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Posted

This is what I hate about the calculation of lawyer's fees here. I can't buy an hour of my lawyer's time in the way my customers can call up and buy an hour of my time. It's in his interests to spend as little time on my case as possible, get more cases in, and ignore the fact that I'd rather like to use him as a consultant on the legal (and especially court-strategic) aspects of this. And to be fair, this might be entirely non-prejudicial to the eventual outcome of the case, but it's not really doing what the customer (most of whom only ever have to go to law once, or if they are terribly unlucky twice, in a lifetime) wants.

 

It's inevitable that I will know the details of the case better than he, but likewise he should know the law better than I do. And these damn regulated fees for so many professionals just take the principal-agent conflict and make it 100 times worse. Regulated fees should come along with a regulation limiting the number of customers you can take on - to ensure they all get a look-in (as they can't exactly go somewhere else having hired you).

 

On the basis of this discussion, I might pay to get a cost estimate and instruct the lawyer to proceed on that basis as a "Streitwert" rather than the €20k he initially demanded. I have already made advance payments for the legal bill (my side only) for both außergerichtliche Tätigkeiten and 1. Instanz, and assume these will be reckoned up on the basis of the final Streitwert at the latest once the case is concluded. I don't have a problem with the lawyer and courts sitting on my money for however long because we miscalculated the Streitwert, as long as the fees are legally correct, and (provided we win) reimbursed to the greatest extent possible by the losers. The other side have legal insurance (for what difference it makes) but I believe most such insurance excludes cover for disputes related to property transactions.

 

My only real concern is that the judge will dismiss our claim because it's vastly overblown, rather than admitting our claim at whatever (lower) level the Gutachter comes up with. Is that a possibility?

 

I will certainly keep you appraised of developments (I also have a second, slightly less secure but hence more interesting, case pending against the same defendants), though it's obviously going to be several months before there are meaningful developments.

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Posted

 

My only real concern is that the judge will dismiss our claim because it's vastly overblown, rather than admitting our claim at whatever (lower) level the Gutachter comes up with. Is that a possibility?

 

No, don't worry, they "repair" such stuff during the Prozess.

 

Judges here are calm, rational beings, they have to be with all the petty stuff they have to sit on every day.

 

Anyway, they can't just dismiss a case.

Maybe that's one of the reasons the German justice system is so overworked, anyone can file a case for whatever petty and unimportant cause (there have been cases over claims of just some €) and the courts have to deal with it just as if it was a "proper" case, with all the judicial procedures and overhead.

 

If you're interested, here's an article on the guidelines judges have to follow about how much time they are allowed to spend on each case.

No wonder they encourage Vergleiche so much, it gets cases off their desks.

 

That's also why they tried to put in a prior mandatory mediation step for things like neighbour conflicts (which take up a lot of court time), in the hope that people come to agreements outside the courts.

However, it didn't work, if people really want to go to court they just refuse mediation and still end up in court.

 

 

I also have a second, slightly less secure but hence more interesting, case pending against the same defendants), though it's obviously going to be several months before there are meaningful developments.

 

Yes, by all means, please :)

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Posted

The second one is to do with the roof, which we were told (not contractually of course) had been replaced. Turns out on closer inspection that that wasn't the case.

 

So we claimed this, and got a reply saying "my clients did not claim that the roof had been completely replaced but only that X renovation work had been done".

 

Well, as the X renovation hasn't actually been done, talk about handing it to us on a silver platter! I can see that claiming total renovation costs might be difficult to pursue but now they've put in writing that they promised X (over half of the total renovation costs), that written admission coupled with a Gutachten that X was not done looks good. I will probably pursue the cost of X only and not take the risk on everything-X.

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Posted

 

So we claimed this, and got a reply saying "my clients did not claim that the roof had been completely replaced but only that X renovation work had been done".

 

Well, as the X renovation hasn't actually been done, talk about handing it to us on a silver platter!

Sounds like their lawyer is on your side ;)

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Posted

Update for those interested:

 

As PandaMunich predicted, this ended in a Vergleich. The judge was clearly not interested and wanted to scare both parties into believing they would lose the case. Obviously they don't say anything binding in the first hearing, but she strongly implied that leaky drains don't represent a "Sachmangel". I find that pretty hard to believe, but after that, when the judge suggested a 50% settlement, it was clear we were not in a position to continue. With hindsight and some research that the busy lawyers clearly don't have time for, I can see that argument backed up with precedent either way (depends if you take the age of the property into consideration), but mostly towards the "yes it is a Sachmangel" direction.

 

The other party was at least (implicitly) criticised for not informing us and making some loopy and self-contradictory arguments.

 

Of course we also have to cover our own costs. I find these reasonable for the legal bit of it, but the fees for the "Außergerichtlich", which basically covers writing one letter, are extortionate. I also seriously think I'd have done a better job in the court room without the lawyer present - I'd at least have asked the judge to explain why leaky drains might be considered to have the expected "Beschaffenheit". As it was I only spoke about four times. Unfortunately for the supposedly "bigger" cases you are obliged to have a lawyer.

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Posted

Thank you for the update!

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Oh yeah, and (again in line with PandaMunich's prediction) right at the end where the judge said "Streitwert 21,000 Euro?", both lawyers agreed immediately!

 

A learning experience, albeit for something you never hope to have to do again. I will do a few things differently next time - perhaps qualifying as a lawyer before starting the case would be a good idea.

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Posted

What about the roof? How did that turn out?

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Posted

It didn't and we might have made it hard to pursue that with the wording of the Vergleich.

 

This is a slightly different issue as it would relate to the agreement on its condition at time of sale, rather than being "arglistig Verschwiegen". Is there such a thing as "arglistig Hochgepriesen"?

 

We'd have an immediate conflict between the contractual "sold as seen" stipulation and the extracontractual statements about its condition, including their lawyer's letter saying that certain works had been done. With a roof it's rather harder to argue that it's "versteckt", with the drains that goes without saying. So I think this would be a much harder case to argue.

 

In my admittedly limited experience (just the one case), judges seem surprisingly poorly disposed towards those who sue others who have obviously defrauded them. I have to wonder if they even read the correspondence that takes place before the hearing, or just skim it.

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