Old-age clause in home purchase

When buying or selling a home, it is important to be mindful of the parties' allocation of risk. A common (but not standard) provision in purchase agreements of older homes is the so-called age clause. But what exactly does this clause entail? And how far does the protection it affords the seller extend? Lawyer Robert van Ewijk specializes in home buying and selling disputes and explains the age clause in this blog.

What is an aging clause?

This clause is often included in the sale of older homes. The clause alerts the buyer that the home may not meet today's construction standards due to its age. This is done to alert the buyer to the possibility of hidden defects. In addition, the age clause ensures that the seller is no longer liable for those defects. The purpose of this clause is therefore quite clear: it should limit the seller's liability for defects related to the age of the house. This deviates from the main rule in article 7:17 BW and the provisions of the NVM purchase agreement: a property must meet the buyer's reasonable expectations and be suitable for normal use (conformity requirement).

Note that in principle, this limitation applies only to unknown defects. If the seller does know about a defect, he has a duty of disclosure. The age clause does not extend so far that the seller may remain silent about defects known to him.

This is what you need to know about the aging clause

Importance of the ageing clause

For the seller, the age clause is an important protection. Without such a clause, the buyer can still claim compensation if serious defects are discovered later, because he could expect the house to be suitable for normal use.

For the buyer, on the other hand, it is important to be aware of the presence of an ageing clause as well as its consequences. These consequences differ depending on how the clause is worded.

Case law on the ageing clause

The interpretation of the ageing clause frequently leads to discussions in practice. Judges sometimes interpret the clause narrowly, but sometimes broadly. And the wording of the clause in the purchase agreement is often decisive in this regard.

It follows from jurisprudence that the buyer's obligation to investigate becomes more weighty the moment an age clause is included in the purchase agreement (Arnhem-Leeuwarden Court of Appeal, May 12, 2020, ECLI:NL:GHARL:2020:3682). In this case, a couple purchased an old detached house built before 1879. Because the property was very old, an age clause was included in the purchase contract. This stated that the buyer was aware of the age of the property and that different requirements for building quality applied than for new construction. It also stipulated that the property had to be suitable for normal use as a residence, but that the seller was not liable for defects that the buyer knew or could have known about. The buyers discovered swamp in the floor of the house after the purchase and tried to hold the sellers liable for it.

The court ruled that they should have taken this into account given the age of the house and given the ageing clause.

Linguistic explanation of an ageing clause

Defects that can be proven to be due to the age of the house are often covered by the clause. This is especially true with a somewhat generally worded age clause. Judges often apply the Haviltex measure Add. In the December 17, 2019 judgment of the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2019:4501) it was held that it is primarily the linguistic interpretation in the context of the contract that is decisive. The court determined that from the title and first sentence of the clause in that case, it was intended to assume defects arising from the age of the home and the construction requirements in place at the time. Thus, the wording of the clause matters a great deal for its interpretation.

Broad interpretation of an ageing clause

In the judgment of the ’s-Hertogenbosch Court of Appeal of January 26, 2016 (ECLI:NL:GHSHE:2016:193) contains a broad explanation of the ageing clause. The sales document in this case contained standard provisions stating that the property had to be suitable for normal use as a residence. At the same time, the deed also contained an age clause. The age clause stated that the seller would not guarantee the condition of the foundation, pipes and other age-related defects unless explicit guarantees were given. The court ruled that this was a clear exoneration clause, the effect of which does not extend only to defects arising from age. It therefore also applies to the architectural items mentioned, if the defects do not necessarily stem from their age. The text is broader and explicitly excludes liability for foundation, unless a formal warranty is expressly given.

Old age clause is sometimes not just about age-related defects

But also the Gelderland District Court in the May 15, 2024 judgment (ECLI:NL:RBGEL:2024:3928) ruled somewhat more recently that the age clause may be interpreted broadly in some cases. The court ruled that both parties had signed the old-age clause and that this clause - although suggesting that it deals with defects due to age - is in reality much more broadly formulated. In fact, that clause states that all defects, regardless of cause, are at the buyer's risk unless they were explicitly excluded. The court found it irrelevant that the clause was called ‘age clause’; what mattered was the content of the text, and that left little room for doubt.

Conclusion on the ageing clause

The aging clause is not a standard clause with one-size-fits-all effect. The wording of the clause in the purchase agreement is of great importance and may determine whether a seller is liable for defects. For sellers, it is again important to include a well-formulated clause that actually makes clear which risks are excluded. For buyers, it is important to be alert to the existence of such a clause and to have a structural inspection carried out in good time. It is also important to be clear in advance about the scope of the ageing clause. In fact, that is often easy to establish in advance. This prevents discussions afterwards.

Want advice on the wording of an ageing clause, or are you in conflict over hidden defects and whether the ageing clause applies to them? Then take contact on with our lawyers.