When you buy an (old) house, you buy it in the condition it is then in. This means including all visible and invisible defects. If it turns out that there is a defect after the purchase, this is in principle at the buyer’s risk. This sounds logical. Nevertheless, there are conceivable situations in which the buyer can hold the seller liable for the costs of repairing the defect. In this article I explain when this can be the case.
When can the seller be held liable for a defect?
A seller can still be liable for a defect after the transfer of a property, if:
- the seller has wrongfully failed to report the defect to the buyer; or
- there is a serious deficiency.
In both cases, the defect must have been present at the time of the transfer of the property.
Has the seller not reported the defect?
The seller may be liable if he knew of the defect in the property but did not say anything. In that case, the seller is liable because he has violated his duty of notification. The obligation to notify means that he must notify the (potential) buyer of all defects in the house prior to the purchase.
On the other hand, the buyer has an obligation to investigate. This means that the buyer must investigate the (architectural) condition of the house (or have it investigated). When buying an older house, the buyer has a heavier duty to investigate, because the risk of defects is greater.
Is there a serious defect?
A serious defect exists when the property does not have the properties necessary for normal use. Normal use means that someone can use the property safely. This means, for example, that you must be able to stand safely on the balcony or that the house has a safe and watertight roof construction. If the house is not suitable for normal use, while this is included in the sales contract, then there is a serious defect. The buyer can then hold the seller liable for the costs of repair. In principle, it does not matter that the seller did not know of the hidden defect at the time of the sale.
What possibilities does the seller have to limit his liability?
Sales contracts regularly include clauses limiting the seller’s liability for defects. For example, in an age clause, the seller reminds the buyer that the property is older. In that case, the buyer may not have the same expectations of the house as with a newer house.
Another example is the non-self-residence clause. This states that the seller has not lived in the house himself, so he is not familiar with the condition of the house. This is often the case with a former rented house or house acquired through an inheritance.
If such a clause is included in the purchase agreement, the seller may not be liable for the defect. The costs of repair will then remain for the buyer.
What to do when there is a defect?
The buyer has a duty to complain. This means that he must report the discovery of a hidden defect as soon as possible to the seller of the house of purchase. If the report is not made immediately after the discovery, the defect must in any case be reported within a reasonable period of time. Usually a period of two months is reasonable.
Whether the seller is also liable usually depends mainly on the contents of the sales contract and the circumstances of the case. It is therefore always wise to seek legal advice in good time.
Information
Have you, as a buyer, discovered a hidden defect or are you, as a seller of a house, confronted with a complaint from the buyer or do you have other questions on this subject? Then please contact Yvonne Jansen.
