The current housing market is forcing buyers to make quick decisions. In practice, this means that structural inspections prior to purchase are increasingly being waived. But what if hidden defects in the property are discovered after completion? Would you, as the buyer, still have legal recourse? And when is the seller liable?
According to Article 7:17 of the Civil Code, a property must comply with the terms of the purchase agreement. This means that the property must have the characteristics necessary for normal use and which the buyer could reasonably expect. In the case of hidden defects in real estate, these characteristics must be missing and the buyer must not have been aware of them in advance.
However, not every defect constitutes a shortcoming. A buyer of an older home must take into account the possibility of overdue maintenance and that the home may not meet modern requirements.
When assessing hidden defects in real estate, the seller's duty to disclose and the buyer's duty to investigate are of great importance:
In practice, model purchase agreements (such as the NVM model) are often used. These usually stipulate that the seller is only liable for defects affecting the property's normal use. Whether a property can be used normally must be determined by taking into account all relevant circumstances, including what the buyer could reasonably expect based on the nature of the property or the seller's statements. An age clause in the purchase agreement can play a significant role in this regard.
Including an age or asbestos clause in the purchase agreement further limits the seller's liability. However, this does not completely rule out the possibility that the seller may still be liable. For instance, the seller could still be held responsible if the defect is not related to the property's age.
If you discover serious hidden defects in your property after completion, it is advisable to seek legal advice immediately. Our lawyers can assess whether there is a hidden defect and whether the seller can be held liable for it.
Are you dealing with hidden defects in homes or other properties? Or are you a buyer or seller who wants to be legally informed before entering into a purchase agreement? Our real estate lawyers can provide expert, practical advice.
A hidden defect is a defect in a property that only becomes apparent after transfer, and which the buyer would not have expected under normal use. Examples include a rotting roof or damaged foundations.
Yes, you can hold the seller liable for hidden defects under certain circumstances. This applies in particular if the defect hinders the normal use of the property and was not disclosed to you prior to purchase. You should always seek legal advice on this matter.
Report the defect to the seller in writing as soon as possible, asking for a solution. You should also consult a lawyer to discuss your rights and the next steps you should take.
Although an age clause limits the seller's liability, it does not exclude it entirely. The precise implications depend on the wording of the clause and the nature of the defect.
While it is not mandatory, it is highly recommended. A structural survey can reveal hidden defects and prevent disputes further down the line.
Whether or not you are entitled to a refund depends on the nature of the defect and the contractual agreements. In any case, you must complain to the seller within a reasonable time of discovering the defect.
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