Dutch real estate lawyer on hidden defects

AMS law firm: Dutch lawyers

Disputes often arise over a defect to a sold house. Whether the seller is liable depends, in the first place, on whether this is a visible defect or a hidden defect. In general, the seller is not responsible for visible defects, which could have been seen and noted during a thorough inspection. This is different, however, when it concerns hidden defects. Hidden defects are those defects that the buyer only discovers after the transfer of the house. Whether or not the seller is liable for those defects, is not always an easy question to answer. In general, the Civil Code of The Netherlands states that the house has to have those characteristics that the buyer could expect, based on the agreement. If the house does not have these characteristics, the seller can be liable.

Hidden defects in purchases

However, the buyer cannot sit still. If the buyer has reason for doubt, for example if there are visible small cracks, he has to investigate. Also in general, the buyer has to investigate the condition of the house. If the seller has guaranteed that the house has certain characteristics (such as the absence of asbestos or pollution), or if the buyer has complied with his obligation to investigate, the seller can be held accountable.

Disclosure obligation in The Netherlands

At the same time, however, the seller always has a disclosure obligation. The seller has to disclose everything he knows (that can reasonably prevent normal use of the house). If he fails to do so, the seller is liable. There are many areas of doubt, and therefore there is ample litigation on this subject. The answer to this question always depends on the specific circumstances of the case.

Legal advice in The Netherlands

Apart from hidden physical problems, there can also be problems of a purely legal nature, such as the existence of an easement or a lessee with rent protection, which prevents the buyer from the free enjoyment of the purchased house. Concerning these kinds of legal restrictions, the Civil Code of The Netherlands takes a strict line: the seller has to transfer the property free of all special burdens and restrictions, unless agreed to otherwise. So, in contrast to actual/physical problems, in principle in these cases the buyer does not have an obligation investigate. It is therefore essential to disclose anything the seller knows and to have this recorded properly.