If after purchasing a property you discover a hidden defect for which you want to hold the seller liable, it is important that you take immediate action.
Legal actions for hidden defects
If, after purchasing a property, you discover a hidden defect for which you want to hold the seller liable, it is important that you take immediate action.
Recovering the damage from the seller is a process that consists of several steps and we will discuss this briefly.
I Report the hidden flaw
By law, you must report this within a “competent” time, which means that you report the defect to the seller as soon as possible after you discover it. It can be deduced from legal practice that “appropriate time” means that you must report the defect within a few months. As a guideline, you can report your hidden defect to the seller within two months.
Please note that you may have to demonstrate at a later time that you have reported the complaint on time and the complaint must therefore be reported to the seller in writing (and preferably by registered mail).
II Notice of default to the seller
You must give the seller the opportunity to view the defect on site and you must give him the opportunity to fix the hidden defect within a reasonable period of time. If the seller and you come to an agreement, it is advisable to document the agreements properly and to obtain legal advice before signing anything.
If the seller does not respond to your complaint and unfortunately you do not reach a joint agreement on a solution, you must declare him / her formal notice of default. You write a notice of default by registered letter to the seller, in which you demand that the seller repairs the damage within a reasonable period (two weeks). If you cannot wait for repair (the defect must be repaired immediately) you can claim compensation instead. As a buyer, you do have the duty to limit the (subsequent) damage of the hidden defect as much as possible (via an emergency repair). You can recover the costs of this from the seller.
III Legal proceedings
If the notice of default is unsuccessful, you can start legal proceedings against the seller in which you can demand various matters. This depends on the specific situation and you can make good use of the specialist real estate knowledge of JAW Advocaten:
I – Compliance
This means that the seller repairs the defect, whereby he himself determines by whom and how he does this
II – Indemnity
You claim compensation for the damage you have suffered as a result of the hidden defect of which you could not have known yourself and which was not revealed during a construction inspection. If the court finds that you as a buyer have not fully complied with your obligation to investigate, the result may be that the compensation will be limited by the court.
III – Dissolve
Dissolution of the purchase agreement means that the seller gets the house back and pays back the purchase price to the buyer. It partly depends on the purchase agreement whether this is legally possible. Many contracts contain a clause that makes dissolution impossible. If complete dissolution is not possible, in some cases partial dissolution can be claimed.
IV – Cancellation of the purchase agreement
By law, you can terminate contracts on the basis of the legal concept of error. Error means that you misrepresented things. This misrepresentation must be so serious that, if correctly estimated, you would not have entered into the agreement. If you, as a buyer, have not sufficiently fulfilled your obligation to investigate, you cannot successfully rely on error.
If you decide to take legal action, we advise you to call in the help of one of the real estate specialists at JAW Advocaten. Therefore please contact us directly if you have discovered a hidden defect and are considering legal action in this regard.