The (long) five-year warranty period for work on structures also applies in the case of photovoltaic roof systems. The Federal Supreme Court of Justice decided, contrary to the previous case law of the appellate, that also in the case of a roof system added to an existing building, the risk can be equivalent to that involved in construction, with the result that the longer warranty period for construction work applies. Operators and owners of such systems are no longer forced to rely after two years on just the product and performance guarantees of the module manufacturers which are often structured in a manner which is adverse to them. This expands the available remedies for them.

The present case involved a decision about which warranty period applies for a photovoltaic roof system constructed added to a tennis hall which consisted of 335 modules with corresponding support structures. The previous case law of the appellate courts had previously not considered such systems be part of the structure upon which they were installed, especially because the produced electric power was not used to supply the building. The produced electric power is normally directly fed into the electric grid in order to obtain the electric power price subsidized by the government in Germany.

The Federal Supreme Court of Justice has now changed the game. According to the reasons stated in the judgment, the relevant aspect is not whether the photovoltaic systems serve a function for the existing building, i.e. directly supply electric power to the building. Instead, the function of the building is considered to be extended by the installation of the system and its supporting structure. This applies, in any event, if the photovoltaic system, as in the decided case, is firmly attached to the building.

However, what use is a longer warranty period for parties with such systems who normally also get the standard 10 or 20 year market product and performance guarantees from the module manufacturers? One possible benefit is already seen when considering the addressee of the claim. The parties possessing such systems have warranty claims against the companies charged with the (planning and) construction of the system. The manufacturers of photo modules which grant the guarantees often are located in the Far East, and a complaint would have to be filed against them there in serious situations if they refuse to properly fulfill the granted guarantees, for example, because there are no more appropriate exchange modules of a fitting type available.

The content of the warranty claims is also better for the parties possessing the systems than the granted guarantees, for example, if degradation or delamination already becomes apparent in the first five years.

When reviewing the common terms and conditions of guarantee of well-known module manufacturers, there are rosy promises of performance and often other terms and conditions of the guarantee which again reduce the benefit of these promises. For example, the costs for disassembly, testing, disposal, transport, assembly and reinstallation of the modules are often shifted to the owner of the system. However, these costs must be borne by the manufacturer of the system under the statutory warranty. Furthermore, no manufacturer compensates the system owners for the lost revenue from supplying electric power when the system loses capacity. Such damages, however, can be compensated under a statutory warranty.

Anyone possessing or operating a photovoltaic system in Germany should accordingly check whether five years have already passed since the system was accepted and conduct an inspection for defects if possible prior to the expiration of this period, in order to be able to timely assert rights under warranties.

(Federal Supreme Court of Justice, judgment dated 2 June 2016 – VII ZR 348/13)

Martin Knoll, Attorney-at-law
Munich