Seller liable for leaking basement tub? (Part 1 of ‘Wet Feet’ blog series)

The leaves fell off the trees a few months ago and the dark days have arrived. And not only that. With that comes a lot of rain! Persistent rainfall in the Netherlands leads to a rise in groundwater levels. In recent years there has been more precipitation than the soil could handle, causing the excess water to accumulate in the ground layers. Forecasts for next year also predict little improvement. The result? Lots of legal action over leaking basements. The sellers of your home may not have been affected (yet), but you were. So who is liable?

Seller knew nothing of leaking basement tank: problem came to light after high groundwater

Myrthe de Vries is an attorney specializing in real estate law and has written a blog series on this issue. When is the seller liable for a basement basin that cannot handle high groundwater levels? And what if the tub was always leaking, but this problem is only now manifesting itself? Attorney De Vries discusses these issues in the ‘Wet Feet’ series and explains when a leaking basement tub is a hidden defect (non-conformity) yields.

Leaky basement tank or basement tank too low for rising water table?

The effects of high groundwater levels can be significant. By now we are all familiar with floods, which have occurred especially in the southern part of the Netherlands. Infrastructure also suffers from high groundwater. In January 2023, for example, the Vollenhoventunnel on the A28, near Zeist, came up 1.2 centimeters up by the high groundwater. While that was partly caused by the applied, the problem would not have been there without the high water table. In all, there are now seven tunnels in the Netherlands facing similar problems.

Basement problems due to high groundwater

But people also experience inconvenience on a smaller and more personal scale. More and more basements, souterrains and crawlspaces have water running into them because the structures of homes are simply not designed to handle these extreme conditions. This raises legal questions.

For example, can you hold the seller of your property liable if you bought the property recently? Does the responsibility for raising the basement sink lie with the Owners Association (VvE) or the individual owner who has the exclusive right to use the basement? And can a landlord be sued to take action when mold nuisance occurs due to a damp crawl space?

Speak to seller about leaky basement tank

To determine whether you can hold the seller of your home liable for the flooding, the first thing to consider is whether you as the buyer knew or should have known about the defect. For example, if the seller has reported that there has been flooding in the basement in the past and this problem has not been corrected, you as the buyer are expected to further research does. In such a case, there may not be a hidden defect What you can hold the seller accountable for.

Failure to perform of purchase agreement

However, if the seller did not report anything about moisture problems, it may well be a hidden defect. This applies in case the seller knew about the defect but concealed it, and also in case the seller did not know about the defect. This is not the case when the defect occurred after the property was delivered. From then on, the risk passes to the buyer.

Whether you can hold the seller liable depends primarily on what is stipulated in the purchase agreement. Did you buy the property “as-is, where-is”, then it is more difficult to successfully hold the seller liable. However, this changes if you can prove that the seller knew about the moisture problems and intentionally concealed them. A purchase “as-is, where-is,” however, is not standard.

Ageing clause in home purchase agreement

The same is true if there is a age clause. How exactly it is worded is also important. For example, does the ageing clause only exclude problems caused by age, or does it exclude liability for all defects? And in the first case, is the leakage due to age, or simply because the basement floor was not constructed properly?

Starting point: guarantee for normal use

In most purchase agreements states that the seller is obligated to deliver the home without defects that interfere with normal use. Moisture problems in the basement may constitute such a defect. In that case, the seller is not in compliance with the purchase agreement, and there may be a failure to perform. When you succeed in proving this, you can give the seller hold it accountable for repair costs.

Mistake in conclusion of sales contract

Another option is to appeal to error. An error occurs when you had an incorrect understanding of the facts, you would not have entered into the purchase contract under a correct assumption of facts, and this understanding is due to the information provided by the seller. For example, if it turns out that you have to spend a lot of money to raise the walls of the basement, you probably would have wanted to factor these costs into the purchase price. In a successful plea of error, the court may consider the nullify purchase agreement. Another possibility is for the court to annul only part of the purchase agreement. Namely a portion of the purchase price, compensating for the disadvantage you suffer.

Lawyer at leaky basement tank

There are several ways to hold a seller accountable for basement flooding. Should you be faced with this, take contact with our office. We will be happy to assess which route is best for your situation. This should always include the responsibility of the VvE. Read the next blog in this series about that.