VvE liable for basement leak? (Part 2 of ‘Wet Feet’ blog series)

VvE liable for basement leak? (Part 2 of ‘Wet Feet’ blog series)

The consequences of these high groundwater levels are significant. By now we are all familiar with floods, especially in the south of the Netherlands. Infrastructure also suffers from groundwater: in January 2023, for example, the Vollenhoventunnel on the A28, near Zeist, came up 1.2 centimeters up by the high groundwater (partly due to the use of a particular steel structure). There are now a total of seven tunnels in the Netherlands that suffer from similar problems.

Basement in Amsterdam flooded due to high groundwater level

Not only tunnels, but basements flood or are pushed up by water. The structures of homes are simply not designed to handle these extreme conditions. This happens all over the Netherlands, but we receive a striking number of reports from Amsterdam where this is happening. However, this problem occurs throughout the Netherlands. This raises legal questions.

Who is liable in case of flooded basement tank due to high groundwater?

For example, can you use the hold seller of your property liable If you bought the property recently? Does the responsibility for raising the basement basin 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?

In this three-part blog series, answers real estate lawyer Myrthe de Vries of Lexys Lawyers outline these questions. Do you have a question about flooding yourself? Feel free to contact with us.

To what extent is the CoE responsible for flooding due to high groundwater?

To assess for whose account the repair costs will be incurred, the first thing to determine is what exactly is causing the water to enter the building. For example, is there a leak, or is the groundwater flowing over the edges of the basement basin?

Flooding results from defect in common property

Next, must go to the subdivision deed be looked at. Indeed, it will have to be assessed whether the defect is located in a common cause. Whether part of a building is common must be answered on the basis of the interpretation of the demerger deed. The interpretation of the subdivision deed is based on the intention of the party who has proceeded with the subdivision, as expressed in these documents. This intention must be derived objectively from the description in the deed and the drawing attached to it.

Responsibility of VvE wet basement

Most subdivision deeds stipulate that the facades, floors and foundation are common. Therefore, if the defect is located therein, the conclusion will be that the leakage must be fixed by order of the VvE.

Sometimes a deed can also be less unambiguous. Then it remains unclear whether the defect is in a common thing or a private thing. This leads to conflicts. The owners on the upper floors will not be eager to contribute to the cost of repairing a basement. The owners on the first floor who are inconvenienced by the leaks will obviously benefit from the other owners also paying for the repairs.

A similar situation occurs with a roof leak. The owners on the first floor (often) experience no direct inconvenience from this, but will often have to help pay for the repair of the roof.

At Lexys, we can help you assess who should or must bear the cost of the recovery.

Breakdown of cost recovery basement

Once it has been determined who is responsible for repairing the defect, the proportion of the costs to be borne should also be assessed. This too can be found in the division deed, and is also referred to as the “distribution key”. Disagreement can also arise between owners on that point.

Dispute in VvE over basement repair

In fact, the costs can be high. Especially in the event that the owners using the basement have to find temporary replacement accommodation. And it is also possible that the basement is fully furnished with, for example, a kitchen and a bathroom. These will have to be put back in place after the defect is repaired, and if the VvE is responsible for repairing the defect, chances are that the VvE will also have to bear these costs.

Lawyer in dispute over flooded or leaking basement tank

Repair costs within a VvE are unfortunately often fodder for discussion. Based on the circumstances, the responsibility of the VvE in the event of a wet basement can be assessed. At Lexys Lawyers we can advise you on your rights and obligations within the VvE.