“No rights may be derived from this brochure...”

“No rights may be derived from this sales brochure...”

We often encounter this text in promotional brochures for houses or apartments. Even on Funda, such text is often found below the advertisement. But, does it really work that way? Is the mere statement that no rights can be derived from a brochure sufficient, or can you as a buyer still fall back on the statements that the (broker of the) seller did in the brochure? Real estate law attorney Robert van Ewijk specializes in disputes on the buying and selling of real estate and explains how it works.

Derive rights from brochure home or apartment

Sometimes it is added to the disclaimer that the brochure or advertisement is only intended to be appealing and does not contain any guarantees. And in a few cases, the sales contract even explicitly states that the brochure is not part of the purchase agreement. For the buyer who reads the brochure and assumes it is accurate, this can have sour consequences. Still, in practice and case law, such a disclaimer is treated somewhat more nuanced.

Brochure raises expectations

The Limburg court a few years ago, the court dealt with a case in which a property developer had raised the expectation in the brochure that there would be an unobstructed view of Maastricht's city center from the penthouse it was developing. After construction was completed, this turned out not to be the case because the view was obstructed by surrounding buildings. The buyer therefore invoked against the developer error and claimed reduction of the purchase price.

Saying that no rights can be derived from the brochure is not a license to include inaccurate information.

Defense: brochure not part of contract documents and contains disclaimer

The developer defended itself by arguing that the brochure stated that no rights could be derived from it. Moreover, the purchase agreement explicitly stated that the sales brochure was not part of the contract documents. Yet the court did not go along with this. Because it concerned a newly built house, the court found that stricter requirements may be imposed on the sales brochure than in the case of existing construction, since the image of the house to be purchased can only be formed by that sales documentation. This prevents the buyer from forming a false picture of the home to be built. The court therefore found the reliance on the disclaimer to be contrary to reasonableness and fairness. The buyer's reliance on error was subsequently granted and the purchase price was significantly reduced retroactively.

Contents of brochure leads to nonconformity

Very recently, the same court addressed a similar issue. In that case, too, the apartment did not offer the view promised in the brochure. However, because the developer did not have to understand that the view was decisive for the buyer in making the purchase decision, the appeal to error did not succeed. However, the court That there is non-conformity: the home does not conform to the purchase agreement. The court ruled that the brochure is a source of information on which the buyer may base his expectations. Moreover, it was the developer who created the brochure and the developer was the one in control of what expectations would be raised among potential buyers.

Disclaimer not a license to state incorrect information

Also, the Council of Arbitration in construction disputes reached such a verdict in a 2021 case. In that case, the contractor had constructed the façade frames in aluminum instead of wood, which changed the dimensions and resulted in less glass area. This also created a larger step up to the balcony. In addition, there was significantly reduced daylight penetration. From the contract documents it was impossible to determine what the apartment would look like. The sales brochure did: it stated that the facade frames would run from ceiling to floor and that there would be a lot of daylight and views. This turned out not to be the case.

In new construction, more quickly derive rights from brochure

That case also involved a new construction apartment, and also in that case, the contract (in this case, the building contract) mentioned that the sales brochure is not part of the contract documents. Moreover, the sales brochure also mentioned in this case that no rights could be derived from it. However, the Board felt that this did not give a licence to misrepresent the facts. Especially since the contract documents themselves did not provide any information about the height of the window frames. Therefore, buyers were allowed to base their expectations primarily on the sales brochure, despite the fact that it was not part of the contract documents and despite the fact that it stipulated that no rights could be derived from it.

Dispute about buying or selling your home? Take contact with the real estate specialist at Lexys Lawyers.

Lawyer in dispute over purchase of house or apartment

If a sales brochure states that it is intended to be appealing and no rights can be derived from it, then the buyer must understand that he cannot blindly trust the contents of the brochure. However, the case law discussed above shows that this is somewhat more nuanced in the case of a newly built house or apartment. It plays an important role in forming a picture of what will be delivered. And not only in the case of new construction, also in the case of existing construction, the brochure should not simply contain incorrect information. However, every case is different. Take contact with Lexys' real estate attorney for advice in your case.