You have bought a property and later discover serious defects that were not visible at the time of purchase: moisture problems, foundation damage, hidden leaks or electrical installations that are not compliant. In that case, in Belgium, you can hold the seller liable under the indemnification for hidden defects. In this article, Novex Lawyers explains when you can invoke this right and the procedure.
What are hidden defects?
A hidden defect is one that:
- Hidden wax at the time of sale (not visible on normal examination by a buyer);
- Seriously enough to make the use of the good impossible or reduce it to such an extent that the buyer would not have bought the good or at a lower price;
- Existed before the sale (It does not include defects that occurred after the sale).
Purely aesthetic defects or minor imperfections that were visible at the viewing are not covered by the hidden defects indemnification.
What rights do you have?
If there is a hidden defect, the buyer basically has a choice between two claims:
- The resolutive claim (actio redhibitoria): you request the rescission of the purchase agreement and the return of the purchase price, in exchange for the return of the good;
- Price reduction (actio quanti minoris): you request a partial refund of the purchase price, proportional to the decrease in value due to the defect.
In either case, you can also seek compensation for damages you suffered as a result of the defect, such as the cost of remedial work, temporary shelter or depreciation in the value of the property.
Exoneration clauses: can the seller exclude liability?
In most real estate deeds are exoneration clauses included whereby the seller excludes his liability for hidden defects. In principle, such clauses are valid, but they do not protect the seller if he is too bad faith was, i.e., if he knew about the defect and concealed it. A professional seller (e.g., a contractor or developer) is assumed to know the defects anyway.
What deadlines apply?
The claim based on hidden defects must be brought within a short period of time after the discovery of the defect (Article 1648 BW). What is “short” depends on the circumstances, but courts generally do not accept delays of more than 6 to 12 months from discovery. So don't wait too long and consult a lawyer as soon as possible.
How do you prove a hidden defect?
Evidence is crucial in hidden defect litigation. A expert review by a recognized construction expert is almost always necessary. This can be requested through a unilateral petition to the court (procedure on unilateral petition), so that the expert can make his determinations before remedial works are carried out. Thus, never perform remedial works before the expert has prepared his report, except in cases of absolute necessity.
Need assistance with hidden defects?
Novex Lawyers assists buyers and sellers in disputes over hidden defects in the Brussels area. We request the expert examination, guide you in the amicable phase and assist you before the court of first instance if necessary.
Also read: Neighbor dispute and neighbor nuisance in Belgium | Drawing up a lease in Belgium