Posted on: 18-12-2019

When your new home has hidden defects

Written by:

Hein Kernkamp

When your new Dutch home has hidden defects

Unfortunately it regularly happens that the buyer of a house in the Netherlands is confronted with (hidden) defects in the home after the purchase. In certain cases, the costs of repairing those defects can be recovered from the seller because there is non-conformity. In practice, common cases are, for example, the concealed presence of asbestos, an underground tank in the garden, which the seller had not mentioned, or an unreported soil contamination from the past.

The Dutch Civil Code provides that there is a shortcoming if the property does not comply with the agreement. The property then does not have, in terms of the law, the properties required for normal use, while the buyer had no reason to doubt the presence of those properties for normal use. An example from case law: if the buyer states in the purchase agreement that he wants to use a building to live in, the seller will not be allowed to conceal that habitation is not permitted on the spot according to the zoning plan and that the building is therefore not a house can be used.

Disclosure and investigation obligation

On the one hand, the seller has the obligation to report certain properties himself, unsolicited, while on the other hand some own investigation is expected from the buyer. The buyer takes a big risk by relentlessly relying on a sales brochure without taking any further action himself (think of the remark "perfectly maintained"; this applies as a general recommendation and must therefore be taken with a pinch of salt). If a certain part of the home does not look good, the buyer must, if necessary, carry out further investigation. If a damp spot on a wall is discovered during a viewing, the buyer will, if necessary, have to carry out an investigation himself before the purchase into the cause of that damp spot. The idea is that the buyer can then make a lower bid or completely abandon the purchase because, for example, it becomes very expensive to solve the problem.

It has also been determined in case law that the older the home, the more the buyer must investigate. With a home of 70 years old, it is more likely that major maintenance must take place in the short term than with a home of five years old. More defects can also be expected with a 70-year-old home than with a five-year-old home.

Soil contamination

The seller cannot conceal a soil contamination if he knows about it, even if the buyer does not explicitly ask for it. But the buyer himself must also pay attention to certain risks; for example, think of the state of underground tanks that have not been removed in the past but have been filled with sand. The seller should not be silent about the presence of these tanks.

Asbestos

With the presence of asbestos it is a bit more complicated. If asbestos has been applied in a visible place, the buyer will be expected to conduct more own investigation than if asbestos is in a hard-to-reach place or has even been completely invisible.

NVM Questionnaire

Because in practice the standard purchase agreement of the Dutch real estate agents association NVM is often used when selling a home, most lawsuits therefore concern the provisions of that agreement and the associated "NVM questionnaire for the sale of a home". For example, if the seller has filled in the questionnaire that the basement has been flooded, it is up to the buyer to examine the foundations of the home. After all, there is a risk that the foundation will be affected by the varying groundwater level. Complaining afterwards, while a suspicion of damage by groundwater can already be deduced from the questionnaire, does not help anymore.

Furthermore, it has been determined in case law that non-compliance with a duty to disclose is more important than breaching an obligation to investigate a specific defect. Therefore, if it appears that the seller has intentionally concealed a defect, he will therefore normally be liable for damages.

Complaint period

The law stipulates that the buyer cannot wait too long to report defects to the seller. This must be done "within a reasonable time". What that reasonable time is depends on individual circumstances. Two months after discovery is still "on time", regardless of the circumstances. As a buyer, you must first be able to conduct some serious research into the cause of a possible defect.

In practice, for example, it can be that an expert is called in to conduct an in-depth (and sometimes long-term) investigation into a certain possible defect. In that case it is advisable to inform the seller in advance that there is doubt about a certain property of the house and that an expert will look further into it. This takes care of it that the seller has less chance of succeeding with the defense that a complaint has been made too late; after all, he already knew that further investigation was being carried out into a possible defect; the only thing left to wait was the outcome of that investigation.

Finally, it is also important that possible claims from the buyer against the seller become time-barred two years after the report.

What we can do for you

We act for both sellers and buyers. Are you being approached by your buyer? Are you discovering a defect in your new home? Please contact us and ask us your question, without obligation, so that we can indicate whether we can help you with the matter. Not for nothing is our motto: "Your problem, our concern."

More information?

Hein Kernkamp will gladly help you further.