Buyer violates duty to investigate: no damages

In a judgment of the Rotterdam District Court dated January 31, 2023 (ECLI:NL:RBROT:2023:609) emphasizes the onerous duty of inquiry that falls on buyers of older homes when invoking non-conformity. Those duty to investigate weighs all the more heavily, if there is a age clause in the purchase agreement. When purchasing a home, especially when it is elderly, the relationship between the duty of disclosure of the seller and the buyer's duty to investigate a field of tension. This area of tension is largely influenced by the provisions included in the purchase agreement.

Nonconformity and the warranty for normal use

Usually (unless a different model has been used) the condition of the property sold is regulated in Article 6 NVM purchase agreement. The property is transferred with all visible and invisible defects. In principle, the risk lies with the buyer. However, there is an important exception to this, namely the so-called warranty for normal use. The seller guarantees the actual properties required for normal use as living space. Defects which impede this normal use and which were not known or known to the buyer at the time the purchase agreement was concluded, are for the seller's account and risk. This is the basis for a claim of non-conformity.

The ageing clause

When the home is old, in the case discussed as much as more than 64 years old, a age clause included. This provision has far-reaching implications for the seller's liability. The age clause in this case explicitly stated that the demands that may be made on the construction quality are significantly lower than for new homes. More importantly, the clause deviates from the legal regulation of non-conformity (Article 7:17 paragraphs 1 and 2 BW) and the regulation from the NVM purchase deed. The clause states that the lack of properties for normal use, if this is due to age, is for the account and risk of the buyer. Thus, the clause significantly narrows the warranty for normal use. The buyer in this case argued that there was severe woodworm, which required replacement of the floors on several floors. The question then is whether the buyer can claim culpable breach.

Breach of duty to investigate

The presence of the aging clause activates a heightened duty to investigate with the buyer. The seller in this case disputed that there was an attributable shortcoming and argued that, in view of the age clause, the buyer should have been aware of possible deterioration of the woodwork (such as woodworm). Therefore, the buyer should have been expected to have made further investigations into the condition of the house prior to the purchase.

Judge's ruling on breach of duty to investigate

The non-conformity claim related to the woodworm failed in court. In doing so, the consequences of not complying with the duty to investigate decisive. The judge ruled that there was a lack of decisive evidence. The buyers in this case had not sufficiently substantiated that the infestation had come from woodworm and caused the damage. Indeed, they had not submitted an expert report. In addition, the quotes for wood preservation did not serve as evidence. Indeed, the quotes did not show that an investigation had been conducted into the condition of the floors, the degree of infestation, or that the infestation was actually due to woodworm. Now that the floors had been removed and (partially) replaced, no further investigation could be done either.

The court concluded that, since it had not been established that the floors had deteriorated to the point where replacement was necessary and that this was due to woodworm, it had not been shown that there was a defect preventing the normal use of the home. The claim of non-conformity was therefore rejected.

Lawyer in dispute over duty to investigate

This ruling sharply illustrates that the age clause changes the playing field in court. In the presence of an age clause, the buyer is expected to actively and thoroughly investigate age-related defects. A claim of nonconformity in an older home requires a proper expert report. Violating the duty to investigate, by failing to investigate further and provide the necessary evidence, quickly leads to the dismissal of the claim.

Want advice on the wording of an age old clause or the duty to investigate, or are you in conflict over hidden defects and whether the age clause applies to it? If so, take contact on with our lawyers.