8 | the xpat journal | 2012

A Great Place to LiveSo you have come to the Netherlands and have found a great place to live but… you find yourself faced with a few issues: there is a leak in the kitchen, the heat-ing does not function properly, you are under the impression that you are hosting a population of uninvited small furry guests, or perhaps a team of hungry pests is happily feasting on the rustic beams in your attic. Who is to blame for this, or more importantly: who is legally responsible?

By Christian Malipaard

The answer to this question first of all de-pends on whether you are renting your home or own it. If you own it then the age of the property is of great importance; all the way from very old to brand new!

OwnershipIn the case of ownership of a pre-existing home (mean-ing you are not its first inhabitant) the crucial moment for liability, as far as defects go, is the actual transfer of ownership.The basic rule is: once you own it, the property becomes your problem. Thankfully, however, there are four ex-ceptions to this rule:

1 The seller’s ‘obligation of disclosure’Under the Dutch Civil Code, the seller of a real es-tate property is obligated to provide a prospective

buyer with detailed information on its current state and on the residential environment (you don’t want to wake up one morning to find someone putting up a new high-rise right outside your bedroom window…). Any failure to inform you on these issues makes him liable.

2 The buyer’s ‘obligation of examination’The vendor cannot be held responsible for de-fects that are obvious to the naked eye or would

have been clear had you taken the trouble to carry out a more thorough investigation. How thorough you can be expected to be depends very much on the age of the property. This is why it is always advisable to have a structural inspection carried out, and a report made up,

by an independent professional. If you like, you can find checklists on the Internet. Should you fail to fulfil your obligation to have this examination carried out, it will be extremely difficult to hold the seller liable later on.

3 Hidden defects that impede a ‘normal’ use of the propertyIt is always possible that a really serious, previous-

ly undetected, defect turns up that hinders the ‘normal’ use of your new home. For instance, half a year after buying the house, you drain the bathtub and the water ends up in the living room downstairs. Or the wooden floor develops a dispirited sag underneath your exqui-site but very heavy dining room table. In these cases, beware, however: the older a property is, the more likely it is to have certain defects that cannot be blamed on anyone or anything but old age!

4 A newly built property means years of warrantyDifferent rules apply here: the building contrac-

tor is liable for any defects and/or deficiencies until the moment he delivers the property into your hands. He must take you on an inspection of the property and you must sign a piece of paper that you accept the property as is. Before you do this, it is therefore crucial that you have an independent professional inspect the prem-ises and make a report. It is not unusual to find, say, 21 defects! Don’t allow yourself be coerced into signing a so-called pre-delivery report: new issues that must be dealt with might still pop up. After the final delivery, the building contractor has a grace period of three months to fix everything you noted and brought to his attention. This period actually stretches out to six months (the so-called ‘maintenance’-period) for any other problems

the xpat journal | 2012 | 9

LEGAL

that might occur. Make sure you keep a written record of everything and inform the contractor as soon as pos-sible, just to be on the safe side. For hidden defects the contractor remains liable for up to five years and for se-rious structural mistakes even up to 20 years: a luxury the buyer of an ‘old’ house does not have…

TenancyThe main rule here is that, by law, you may expect to have full quiet enjoyment of your rental and that if there are any defects that impede this legal right, your landlord/lady will have to fix them. It is important for you to carefully inspect your ‘home-to-be’ before or when you move in, preferably together with your land-lord. This way there can be no misunderstandings over the state of the property, while you can alert him to the defects that need to be remedied. He will be liable for defects he knew about but ‘forgot’ to tell you about! (Advice for the landlords among you: make sure you keep up the maintenance of the property and that you correct problems quickly. It will save you money and grief in the long run.)Once you have moved in, you yourself will be financially responsible for small repairs and such – as occur in the course of normal daily life. Damages that you are not re-sponsible for can usually be claimed under your house-hold insurance policy. Should you not have household insurance: be prepared for the fact that your landlord can only be held liable if he can be held responsible! This could be the case if he was behind with his mainte-nance duties, carried out sloppy repairs or failed to react to a complaint on your side, resulting in higher damages than necessary.A word of advice for both landlords and contractors: beware that your tenants and buyers might also claim

‘damages for consequential loss’. Case law has shown that if accidents happen and hospital bills have to be paid, the bills add up quickly!

What to Do in Case of a Defect?If, as a buyer, you are confronted with a hidden defect, Dutch case law says that you have two months to alert the previous owner or contractor. If he is not willing to fix the problem or pay for the damages, you will have to take the matter to the courts. If you rent, you can take the following course of action. You:• givenoticetothelandlordofdefault.Ifhefailstocar-

ry out the necessary repairs you can have them done and reclaim the cost

• askthecourtpermissiontocarryouttheabove,be-forehand, just to be sure

• ask fora rent reduction for theperiod the landlordwas in default

• startaso-called‘defectprocedure’withtherentas-sessment committee.

Finally: disputes about defects and deficiencies are nev-er straightforward as they depend on the circumstances, and exceptions might apply. If you are not able to settle your differences with the other contracting party to your own satisfaction, be sure to contact an expert.

ABOUT THE AUTHORChristian Malipaard is a lawyer with the Legal Expat Desk of GMW Advocaten. He can be contacted at c.malipaard@gmw.nl, tel.: 070 - 361 50 48. www.legalexpatdesk.nl www.gmw.nl/en follow the Legal Expat Desk on www.twitter.com/legalexpatdesk, www.facebook.com/legalexpatdesk