Latent defects in a house: what are your rights?

What is a latent defect?

A verborgen gebrek (latent defect) is a defect you did not know about at the time of purchase and could not reasonably have discovered, and which makes the home unsuitable for normal use as a dwelling. A leaking roof, serious wood rot in the joists or foundations so poor that the house is subsiding are examples. Normal wear and tear consistent with the age of the house usually does not count.

The law states that the home must conform to the agreement: it must have the properties you were entitled to expect on the basis of what was agreed, including being suitable for normal use (Article 7:17 of the Dutch Civil Code).

The seller's duty to disclose

The seller must disclose defects they know about or should have known about, if these are important to the buyer. Think of a previous leak, a foundation problem or a dispute with the neighbours. Concealing such a defect can make the seller liable, even if the purchase agreement contains an age clause.

The questionnaire completed by the seller plays a major role here. What it contains, or omits, can be decisive later on. So always ask for the questionnaire.

The buyer's duty to investigate

The seller's duty to disclose is balanced by your duty to investigate. A buyer is expected to inspect the home properly and to obtain information that is readily available. Anything you could have seen or looked up is not a latent defect. How far this duty extends depends on the situation:

• An old house calls for more investigation than a new-build home.
• Visible signs such as cracks, damp patches or a leaning façade oblige you to ask further questions or call in an expert.
• Public information, such as the year of construction, the energy label, permits and known foundation problems in the neighbourhood, is assumed to be known if you could easily have found it.

In principle, the seller's duty to disclose takes precedence over the buyer's duty to investigate: if the seller concealed a known defect, they cannot simply rely on your duty to investigate.

Age and asbestos clauses

• Age clause (ouderdomsclausule): for older homes, the purchase agreement often states that the buyer is aware that the standards for building quality are lower than for new builds, and that the seller gives no guarantee regarding, for example, pipes, sewerage or foundations. This limits your options for holding the seller liable.
• Asbestos clause: for homes built before 1994, it often states that asbestos may be present and that the seller is not liable for the consequences. See asbestos in the home.
• A clause does not protect the seller if they knew about a defect and concealed it.

Discovered a defect? Here is what to do

1. Record the defect with photos, the date and, if possible, an expert's report.
2. Notify the seller of the defect in writing, within a reasonable time after you discovered it. In practice this means as soon as possible, and preferably within two months.
3. Describe what is wrong and what you are asking of the seller, for example repair or compensation.
4. If you cannot resolve it together, call in a legal adviser or check whether your legal expenses insurance provides cover.
5. Watch the limitation period: in principle a claim becomes time-barred two years after you notified the seller (Article 7:23 of the Dutch Civil Code). So do not wait too long before taking further steps.

Prevention is better than cure

The best protection is thorough investigation before the purchase. Have a building survey carried out, ask for the questionnaire and any reports, and look up the public data for the address. Whatever you know in advance, you can factor into your offer or into a condition.

This article is general information, not legal advice. In a specific dispute, much depends on the facts and the wording of your purchase agreement.