You bought a home and moved in, but now discover a hidden defect. What are your options?
Contents
- What is a hidden defect?
- What is the standard liability rule?
- When is the seller liable?
- What are your legal options?
- General tips for buyer and seller
1. What is a hidden defect?
The definition of a hidden defect is not defined by law. Usually, a defect is considered hidden if the buyer thoroughly inspected the home like a normal, foresighted person and did not notice the problem. Examples:
- Moisture problems
- Construction Problems
- Technical defects: faulty heating system, poor electrical system, etc.
- …
2. What is the standard liability rule?
2.1. Professionele verkoop
If you buy a home from a professional seller such as a building developer, the seller is always responsible for hidden defects. Here, the seller has the burden of proof to prove that – despite their professional knowledge – they were unaware of the defect.
2.2. Particuliere verkoop
With a standard sales contract, all visible defects are the buyer’s responsibility:
- It is assumed that the buyer was able to observe everything at the time of viewing.
- All visible defects are therefore the responsibility of the buyer.
- All other defects (i.e., not visible at the time of sale) are the seller’s responsibility.
As buyer:
- should report hidden defects as soon as possible after discovery.
- you can only hold the seller liable at 4 conditions (see next point).
3. When is the seller liable?
In private sales, the seller is liable when these conditions are met:
- The defect is hidden.
- The defect is serious and significant. It interferes with your normal use of your home.
- As the buyer, you must prove that the defect was already present at the time of the sale.
Note: Check your private sale agreement carefully. The seller may have included a clause that the buyer bears the risk of hidden defects. In that case, the seller is not liable for visible and non-visible defects. This is also called an “exoneration clause.” With or without the clause, the buyer has the burden of proof to prove that the seller was aware of the defect at the time of sale. And that he therefore deliberately concealed and/or concealed this defect.
4. What are your legal options?
With serious hidden defects, you have overpaid compared to the value of the home. In that case, you can file a claim in court:
- Rescission of the purchase contract: You return the home and get a full refund of the price and additional expenses. If the seller was in bad faith, you may also get back damages.
- Price reduction: You keep the home but get a portion of the price back, depending on the impact of the defect.
5. General tips for buyer and seller
For the buyer:
- Check the sales agreement carefully.
- Put everything in writing to avoid discussions.
- Ask explicitly about the property’s maintenance history during the viewing.
- Act quickly. Prevent the judge from thinking you ignored the defect for a while.
- Inspect the property carefully during the viewing as well as your move. Keep your eyes and ears open.
- Do not attempt to fix the hidden defect until it has been properly proven and determined who is liable for the defect.
- Have the home inspected by a construction professional or an architect. This will cost a bit, but may save you a lot of expense and headaches in the long run.
For the seller:
- List all of your home’s defects in the private sale agreement. This way you cover yourself and avoid discussions about defects that may or may not have been “hidden.”
- Be honest about the property’s maintenance history.
- Photograph and document the property in detail.
- Make sure you clearly state clauses in the sales agreement.
Would you like to cite this article as a source? Then use:
Stiasteny, L. (2024, Dec. 2). Property bought with hidden defect: What now? Apartment.com. Consulted on (date XX/XX/202X), from https://www.appartement.be/woning-gekocht-met-verborgen-gebrek/
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