Hidden Defects

The key points at a glance

It sometimes happens that after a home is transferred you discover damage you were not aware of. If there is a hidden defect in or around the home that could lead to major costs and prevents you from living there comfortably, you may be able to hold the seller liable. On this page we explain what hidden defects are and what you can do to avoid unpleasant situations.

1. Seller's duty to disclose

The Dutch Civil Code states that a home must be delivered in the condition described in the signed purchase agreement. This means you can hold the seller liable if the home does not meet those conditions. The seller also has a duty to disclose, meaning they are required to inform you of any known defects in the home. If the seller has knowingly (or unknowingly, but should have known) failed to inform you about hidden defects, you can hold them liable. The burden of proof then lies with you.

2. Age clause

Is there a clause in the purchase agreement in the form of an age clause, or one that reads "the property is transferred with all visible and invisible defects of which the seller has no knowledge"? In that case, you have agreed to a deviation from the Civil Code. An age clause means the seller states upfront that you cannot have the same expectations of an older home as you would of a new property. The age clause is usually used for homes 50 years old or more. Still, it is important to check whether such a clause is included in the purchase agreement, as it is increasingly being used for homes between 20 and 40 years old. Sellers can use it this way to try to avoid claims.

3. Non-occupancy clause

A non-occupancy clause can also be included in the purchase agreement, for example if the home was previously a rental property. The seller uses this clause to confirm that they have not lived in the property themselves and therefore do not know its full condition well. When it comes to clauses in the purchase agreement, the wording is very important. It can determine what liability the seller has and what rights the buyer holds in the event of hidden defects.

4. Buyer's duty to investigate

As the buying party, you have a duty to investigate, to bring any potential defects to light. This means it is your own responsibility to, for example, have the home valued and to discover what defects exist before you buy. Bear in mind that visible defects are generally always excluded from liability. You could have spotted those defects before proceeding with the purchase. Check out our tips for a viewing. As part of your preparation, also keep an eye on your budget and calculate how much mortgage you can get, so you keep room for any repairs.

5. Holding the seller liable

Want to hold the seller liable for a hidden defect? If you have legal expenses insurance, you can use that. If you do not, your best move is to notify the seller of the defect straight away. Do this by sending a registered letter with a delivery confirmation. Bear in mind that the defect must have already been present when the purchase agreement was signed and/or at the time of transfer. You must also have fulfilled your duty to investigate. Furthermore, the defect must prevent normal use of the home. In addition, you need to show that you could not reasonably have discovered the defect during the inspection of the property.

6. Deadline for notifying the seller

For new-build homes under the GIW guarantee, there is a period of 5 years after the maintenance period. For existing homes, no fixed deadline applies. Defects that prevent reasonable use of the home often need to be discovered within 60 days. When notifying the seller, always give them the opportunity to have the defect repaired (by themselves or a third party) if possible.

Frequently asked questions

Must the seller list all defects in the purchase agreement?

The seller has a duty to disclose unless otherwise stated in the purchase agreement.

As a buyer, do I have to discover defects myself before the transfer?

You have a duty to investigate as a buyer, which means you are responsible for inspecting the home before proceeding with the purchase.

Can I hold the seller liable if I discover hidden defects after signing the purchase agreement?

If there is no age clause or non-occupancy clause and the seller did not inform you about certain defects, this is contrary to the law and you can usually hold the seller liable.

How long after the transfer do I have to report hidden defects to the seller?

Generally, you must notify the seller within 60 days of any discrepancy between the actual delivery of the home and what was agreed in the purchase agreement.