What can you do if you find a hidden defect in your home?

You've bought a house, but are now discovering serious issues that you weren't aware of when you viewed the property. What rights do you have? And what demands can you make of the seller? Let's take a look with the help of Guy Van Der Steichel, a lawyer in property law at VDS Advocaten.

1. What exactly is a 'hidden defect'?

"According to the Belgian Civil Code (Article 1641), a hidden defect is a flaw that renders the property unfit for normal use, or significantly diminishes its usability to the extent that you wouldn't have purchased the property, or would only have done so at a lower price, had you been aware of the defect", explains Guy Van Der Steichel.

There are three conditions:

• The defect must be concealed: This means that a typical, prudent buyer wouldn't have noticed it when viewing the property. Examples include woodworm in load-bearing beams in a hard-to-reach loft, or a problem with the sewage system that only becomes apparent when you flush two toilets at the same time.
• The defect must be significant: It should prevent the property from being utilised for its normal use, or at the very least impact the value of the property. A broken door handle is not considered a hidden defect, but a loft that appears to be collapsing is.
• The defect must already be present at the time of the sale: It must have been 'in its infancy' at the time of transfer of ownership.

"Ordinary wear and tear or typical age-related defects are not considered hidden defects", emphasises Van Der Steichel. "If you buy a property that is one hundred years old, you can expect some things not to be as new or some damp to be present in the walls, for example. Furthermore, the seller isn't liable for defects that occur after the sale and are caused by your own use or a natural disaster, for instance." For new-builds, however, contractors and architects are liable for a period of ten years. They remain liable for serious defects for ten years in any case.

2. How do you know if the defect was 'hidden' at the time of the purchase? What if you could have seen it, but simply didn't notice it?

"The law is clear – as a buyer, you have an obligation to do your research, and you are expected to inspect the property carefully. Defects that are apparent during a standard viewing are not eligible for a claim", says Van Der Steichel.

Examples of visible defects include obvious cracks in walls, damp patches on ceilings, a crumbling facade or a window that no longer opens (though for the latter, you could have tried it yourself). If you fail to notice such defects during a viewing, this becomes your responsibility.

"A defect is only truly concealed if even a prudent buyer couldn't reasonably have discovered it. Examples include damp behind wallpaper that has been recently applied, woodworm in inaccessible areas or structural issues that only become apparent during heavy rainfall."

Who the buyer is also plays a role. "A professional property dealer or contractor purchasing a property is expected to do their research more thoroughly than an ordinary private individual. The law is therefore stricter in assessing what counts as 'hidden' if the buyer is an expert in the construction sector", adds Van Der Steichel.

Read also: 10 tips for the novice property investor

3. Within what time frame should you report a hidden defect to the seller?

The law talks about the 'short term', but does not define a specific period. In practice, the law usually stipulates a few weeks or months for reporting a defect after having discovered it. "If you wait too long, the judge may rule that you have accepted the defect or that proving it is no longer possible."

You should therefore report the defect as soon as it is discovered. "A verbal report doesn't suffice, as you need to be able to demonstrate later on that you submitted a complaint in a timely manner. You will then also have to file a legal claim (by summons to the court) within a short time frame if you fail to reach a settlement with the seller."

4. What should you do as soon as you discover a defect?

Document everything

Take detailed photos and/or videos of the defect straight away. Note down when it was discovered as well as the exact nature of the defect. Save all relevant documents (deed of sale, correspondence, expert reports and so on).

Don't make the defect worse

You have an obligation to limit the damage. Take steps to prevent any further damage (such as temporarily sealing a leak), but do not carry out any permanent repairs without first gaining permission. If you repair the defect yourself without the seller or their expert having had the chance to inspect it, you won't be able to use it as evidence at a later date.

Seek legal advice

Contact a lawyer specialising in construction law or your legal assistance insurance provider. They will be able to assess whether you have a strong case or not.

Engage a building expert

Have the defect assessed by an independent building expert or architect. Their report will be important as evidence. "Note that the expert must be able to prove that the defect was already present at the time of the sale. Simply describing the damage will not be enough", adds Van Der Steichel.

Send a notice of default by registered letter

Notify the seller of the defect in writing (by registered letter). Describe the problem, enclose the expert report and ask them to respond within a reasonable period of time.

Try to reach an amicable settlement

Invite the seller to present their assessment (with both parties present). This often leads to an out-of-court settlement.

Court summons if a settlement cannot be reached

If a solution cannot be found, you must have a summons drawn up within a short time frame and take the seller to court.

5. What demands can you make of the seller?

You have two main options:

Option 1: The sale is dissolved

You return the property and receive the full purchase price as well as any costs incurred in return. This option is rarely available and only applies in cases of extremely serious defects that render the property uninhabitable.

Option 2: Reduction in price

You keep the property, but seek a partial refund of the purchase price. The amount to be reclaimed should correspond to the difference you would have paid had you been aware of the defect. This is the most common option.

The law does not grant you the right to seek redress from the seller. You may claim compensation to cover any repair costs, but the seller is not obliged to undertake the work themselves.

If the seller knew about the defect and concealed it (in bad faith), you can also claim damages in addition to the reduction in price for:

• Survey fees
• Temporary relocation or hotel costs
• Depreciation
• Moral damages (stress, discomfort)

In practice, a large number of cases end with an amicable settlement in which the seller pays for some of the repair costs or pays out a lump sum.

6. What role does the notary or broker play if a hidden defect is found? Are they liable in any way?

"In principle, notaries are not liable for hidden defects. Their role is confined to drafting the authentic deed and checking the legal aspects (transfer of ownership, mortgages, urban planning extracts)", explains Van Der Steichel.

"A notary is not obliged to inspect a building's physical condition. However, they must inform you of any clauses in the deed, such as an exoneration clause (exclusion of liability)."

The broker has a greater duty to provide information. As an intermediary, they must accurately convey any relevant information regarding the condition of the property. A broker may be liable in the following situations:

• They have provided false or misleading information
• They have deliberately concealed a known defect
• As a professional, they should have known about the defect

"In practice, proving the broker is liable is a challenge. They can usually claim that they had to rely on the information provided by the seller, too."

7. What happens if the seller knew about the defect, but didn't say anything?

A seller who conceals a known defect acts in bad faith. This has significant consequences:

• The seller cannot invoke an exoneration clause (indemnity clause)
• You can claim higher compensation
• The seller risks criminal prosecution for fraud
• The judge will be more likely to be on your side

However, proving the seller has acted in bad faith is often the hardest part. "You must demonstrate that the seller knew – or should have known – about the defect and deliberately concealed it. One such example includes discovering a serious damp problem. It transpires that the seller put up new wallpaper just a month before the sale and rendered the basement inaccessible, and the contractor testifies that he was instructed to 'hide the damp'. This may be evidence of bad faith."

8. What happens if you bought the property at auction?

In the case of sales under judicial supervision – such as a compulsory sale by the court or a public auction through a notary – cover for hidden defects is not provided. The buyer explicitly agrees to purchase the property without recourse. "This is a distinct legal situation, with the rationale being that the seller (often a bank or the court) does not have the same knowledge of the property as a typical seller, and therefore cannot be held liable for any (hidden) defects. If you buy a house at auction, you therefore generally accept that you cannot file any claims for hidden defects, except in the event of proven fraud."

9. What happens if you discover the defect years later? Are there limitation periods?

The limitation period for hidden defects is rather complex:

Short term (expiry period)

Legal action must be launched within a 'short period' of discovering the defect. This is an expiry period, not a limitation period.

Long term (limitation period)

In addition, a limitation period is in place after the transfer of ownership. If you discover a hidden defect after eight years, you may no longer have a claim, even if it is reported immediately.

Exception: Ten-year liability

For serious defects in relatively new homes (less than ten years old), you may be able to appeal to the contractor or architect through the ten-year liability period, even if you can no longer sue the original seller.

Note that these deadlines are indicative. Cases will always be assessed on an individual basis according to the law.

10. How to avoid hassle and extra costs

Look out for suspicious signs. Think of freshly painted walls or new wallpaper, inaccessible areas (loft, cellar), unusual smells (mould, damp), furniture strategically positioned against walls, a seller dodging questions and more.

Read also: What to look out for when buying a home

Have a structural inspection carried out. An independent expert will carry out a thorough inspection of the property in advance. This is your best protection.

View the property at least twice. Take the time to view it in different weather conditions. Test everything, such as the heating, taps, sockets, light switches, toilets, doors, windows and so on.

Ask specific questions. Make sure to explicitly ask about damp, leaks, the heating system, drainage, the roof, electricity, any previous renovations, insurance claims and so on. It is best to do this via email to make sure you have everything in writing.

Read the deed of sale carefully. Pay attention to exoneration clauses and ask the notary to explain them. Request any adjustments if necessary.

Document the condition upon delivery. Take photos and videos of all the rooms on the day on which the keys are handed over.

11. Is having legal assistance insurance worth it?

Legal assistance insurance can be worthwhile in disputes regarding hidden defects. Such insurance covers the costs of legal advice, expert appraisals and any legal proceedings pursuant to the policy terms and conditions.

If you discover a hidden defect after buying your home, you can contact your legal assistance insurance provider. A lawyer from your insurance provider will advise you and help you to address the seller's obligations. They can assist with sending the registered notice of default, appointing an expert and conducting negotiations, for example.

Many legal assistance insurance policies have special cover for 'home' or property conflicts, so make sure that is included in your policy if you want this risk to be covered. Insurance typically also covers the costs if legal proceedings are necessary, such as court fees, survey fees, solicitors' fees and so on within the limits set out in the policy.

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