Concealed defects in purchase of property (nonconformity)

A home is often the biggest purchase you can make. Sometimes a hefty sum for a building contract the renovation, but it could also be that you bought a home that you thought you could move into right away. Nothing is more annoying than nasty surprises or snags like hidden defects.

Property with hidden defect

If there are hidden defects after purchase, it can be substantial. And the seller will not be happy either. Because even if he did not know about the hidden defects, he can be liable for repairing them. But when is there a hidden defect and when not?

Warranties in NVM purchase agreement

In the NVM purchase agreement standard contains a provision in which the seller guarantees that the sold property is suitable for normal use as a (mostly) home. Hidden defects are defects that prevent that normal use and that you yourself did not have to see at the time of purchase. If a hidden defect turns out to be present after the purchase, the seller can be held liable. However, there are a number of exceptions to this principle.

Duty of investigation and duty of disclosure

First of all, on the buyer is a duty to investigate rest. He must examine the home before purchase in order to identify any defects. If a defect was visible and the buyer did not investigate, then he cannot hold the defect against the seller. Against the duty to investigate is the duty of disclosure from the seller. The seller must tell what he knows about any defects of his own accord. In practice, this is done with the questionnaire. The duty to disclose takes precedence over the duty to investigate. If the seller has remained silent about a defect known to him and the buyer has not investigated, the seller may still be liable. Read more about the duty to investigate and duty of disclosure.

Ageing clause or non-self-occupancy clause for hidden defects

In addition, there may be clauses in the purchase contract that are an exception to the normal use warranty and thus also affect the consequences of hidden defects. In a age clause may state, for example, that defects caused by the age of the property are the buyer's responsibility. These then do not prevent ‘normal use. There is also a non-self-occupancy clause, often used by housing associations, investors or houses sold from an estate. That clause ensures that the seller will be liable for defects that the seller did not know about because he did not live in the property himself.

No hidden defect but still hold the seller liable?

If there is no hidden defect or there is an age clause, sometimes you can still sue the seller. For example, under circumstances there may be error. In that case, you may be able to use the nullify purchase agreement or partially destroy it.

Terminology: hidden defects, nonconformity and invisible defects

In the vernacular, we usually refer to hidden defects. Yet that is not necessarily the best term. In fact, the law speaks of nonconformity. What has been delivered is then not ‘conforming’ to the purchase agreement. That is where the term ‘non conformity’ comes from. Furthermore, the NVM purchase agreement talks about ‘visible and invisible defects’, but not about hidden defects.

Act appropriately for hidden defects

If you as a buyer are faced with hidden defects, you must act appropriately. First of all, you should timely complaints in order not to rights to process. In addition, you may not always start fixing the defect right away. Sometimes you have to give the seller the opportunity to do so. It is wise for the seller to investigate whether he is actually liable, so that his response to the buyer can be adjusted accordingly. Have you purchased a home or commercial property with hidden defects or are you being sued by a buyer? If so, contact the real estate law attorney at Lexys Attorneys at Law. Our lawyers have years of experience advising and litigating on hidden defects.