What are hidden defects?

Hidden defects (in Dutch: verborgen gebreken), also called latent defects, are faults in a property you bought that were already there at handover, but that you as the buyer could not reasonably have found during viewing and inspection. Think of rotten joists under a floor or a leak that was painted over. For a general overview, see our article on defects in houses.

This article describes the situation under Dutch law. Other countries have different rules.

What does Dutch law say?

The rules are in Book 7 of the Dutch Civil Code (Burgerlijk Wetboek, BW). Under Article 7:17 BW, what is delivered must ‘conform to the contract’: the home must have the qualities needed for normal use. If it does not, this is called non-conformity. Two duties decide who carries the risk:

• The seller’s duty to disclose: the seller must tell you what they know, such as past leaks, repairs or foundation work.
• The buyer’s duty to investigate: you must carry out a reasonable inspection yourself. Anything you could have seen, or could have had investigated, usually no longer counts as hidden. For older homes this duty weighs more heavily.

An age clause (ouderdomsclausule) in the purchase contract puts defects caused by the age of the house at the buyer’s risk. How far it reaches depends heavily on its exact wording.

Time limits

Article 7:23 BW says you must report a defect ‘within a reasonable time’ after discovering it. If you buy from a business (a consumer sale), notice within two months is in any case on time. After timely notice, your claim becomes time-barred after two years.

Application: what to do if you suspect a hidden defect

1. Record everything: photos, the date you found it, what you saw.
2. Notify the seller in writing straight away, even if you phone first.
3. Have an independent building surveyor record the defect and its cause before you open anything up or repair it.
4. Get legal advice (legal expenses insurance, or in the Netherlands the Juridisch Loket) before repairing or making a claim.

Tips and points of attention

• Read the seller’s questionnaire and the contract carefully, especially the age clause. You can negotiate on it before signing.
• Have a building survey done before you buy: it cuts the risk of surprises and meets your duty to investigate.
• This article is general information, not legal advice.

Related terms

• Defects in houses
• Construction defect
• Buying agent
• Purchase and construction contract
• Foundation problems with timber piles

Want to learn more about construction terms? Visit our knowledge base at fredsdiyplans.com.