When is the broker liable?

When is the broker liable?

Exactly how far does the broker's liability extend? Because of the overstrained housing market, we are asked this question more and more often. Homebuyers still often bid above the asking price and buy the house without a technical inspection. There is also often a age clause included. Therefore, suing the seller for hidden defects is difficult. Disappointed buyers are therefore increasingly trying to hold the real estate agent liable. Is that justified? Real estate lawyer Robert van Ewijk Explains when the broker is liable.

Contractual relationships broker, buyer and seller

A sales broker is only in a contractual relationship with the seller. If he fails to perform his assignment properly, the seller can hold the broker liable on the grounds of breach of contract. The buyer does not have that option. If the seller does not comply with the purchase agreement (for example, because there are hidden defects), then, in principle, the seller must be held liable. Nevertheless, under circumstances the broker can also be liable to third parties, such as the buyer.

Unlawful act of the broker

This is the case, for example, if the broker acts negligently toward a potential buyer. This could be the case if the broker provides information he knows or should know to be incorrect. Therefore, the property agent has a duty to obtain sufficient information about the property to be sold. In practice, the questionnaire is often used for this purpose. In principle, the property agent can then assume that the information received is correct. 

Broker may usually assume accuracy of seller's disclosures

The Supreme Court (ECLI:NL:HR:2012:BV6162) ruled in 2012 that the real estate agent is not required to verify the accuracy of all information received from the seller. The only exception is if the agent has reason to suspect that something is wrong with the information received. On the other hand, the real estate agent does not have to see everything. A real estate agent is not a structural engineer and cannot be expected to fully inspect the property being sold. Furthermore, the buyer also has a duty to investigate.

Real estate attorney for liability broker

A broker is an intermediary who brings buyer and seller together and establishes a contract of sale between them. The premise is that a hidden defect is in that contractual relationship. Whether a sales broker is liable to a buyer depends on many circumstances. The real estate lawyers at Lexys Advocaten have years of experience advising and litigating (including before the VBO and NVM disciplinary bodies) on the liability of real estate agents. Please contact us if you have any questions.