Seller's liability for hidden defects

Questioner

We received the key to our 1951 home last week. In the meantime, we have had a camera inspection carried out in the sewer on advice. This revealed the very poor condition of the sewer. A rotten and sagging pipe that needs to be replaced. Is this a hidden defect for which we can hold the seller liable?

Lawyer

There may be a hidden defect. A claim for liability may have a chance of success. However, a number of conditions must be met for this. One of these conditions is whether the seller has fulfilled his duty to report and you have fulfilled your duty to investigate. Did you have a structural survey carried out prior to the purchase/delivery or did the other party mention anything about the (good) condition of the sewerage system?

Lawyer

That depends on a number of factors. First, what was agreed in the purchase agreement between buyer and seller is decisive. If a warranty provision is included in the agreement, the seller is liable for all hidden defects, provided that it can be said that they hinder normal use as a residential home. If no warranty provision is included in the purchase agreement, the conformity guarantee of article 7:17 BW still applies. On the basis of this, the home must comply with the agreement: if the item does not have the properties that are necessary for normal use, it does not comply with the agreement. A buyer may expect that the home has the properties that are necessary for normal use and the presence of which he did not have to doubt, as well as the properties that are necessary for a special use that is provided for in the agreement. Furthermore, an age clause may be included in the purchase agreement that limits the rights of the buyer. The seller of a home is obliged to report defects in the home that impede the normal use of the home, so that the buyer can take the defects into account when making his purchase decision. This is called the seller's duty of disclosure. On the other hand, there is the buyer's duty to investigate. After all, the buyer is also obliged to actively inform himself about the condition of the house. For example, this could involve hiring an expert to draw up a building report. Therefore, it must also be determined whether the buyer has fulfilled his duty to investigate. After all, if the buyer could have noticed the hidden defect when viewing the house, there is no longer a hidden defect. If a hidden defect is present (see the requirements above), the buyer can hold the seller liable on the basis of article 7:17 BW for the costs that the seller must incur to remedy the hidden defects. The seller is liable for these costs if it is established that he was or should have been aware of it and subsequently failed to inform the buyer of its existence. Furthermore, the seller is only liable if the hidden defect prevents normal use of the home. Furthermore, notification to the other party must be made in a timely manner. In case law, a maximum of two months after discovery is assumed. Please feel free to contact us for more information.

Lawyer

If you purchased the property using the standard NVM purchase contract, the following applies: - defects in the home are at your risk (Article 5.1); - unless they make normal use of the home impossible (Article 5.3: the seller guarantees normal use). A bad sewer pipe is a hidden defect, but does not automatically give rise to a claim against the seller. This requires that the bad pipe leads to an impairment of the normal possibilities of use of the home. It is required that the failure to repair in the foreseeable future (counting from the date of sale) leads to significant restrictions on the use of the home. In this respect, it is therefore important how bad the damage to the pipe is and what influence this has on the normal possibilities of use. However, sometimes you cannot even hold the seller liable if the defect is so serious that it restricts the normal use of the home. The home is from 1951. The contract may have an age clause (added to the end of the agreement, after the provisions of the model contract). The seller will then often no longer be liable at all, no matter how serious the defect is. You can hold the seller liable if you can prove that he knew about the pipe but kept it from you.