The age clause when buying an old Dutch house
Sellers of old houses in the Netherlands routinely include an age clause. As a general rule it covers only defects arising from the age of the property, which is less than the wording often suggests. Below are two cases that came out in opposite ways, who must prove the connection with age, which wording does reach further, and how the seller's duty of disclosure relates to the buyer's duty to investigate.
Two age clauses, opposite outcomes
On 6 November 2024 the District Court of North Holland dismissed a claim of EUR 42,700 in full. Whether the defect prevented normal use of the house was expressly left undecided. The age clause settled the case before that point (para. 4.25).
The buyers had bought a house dating from 1899 for EUR 610,000. A survey carried out before the purchase reported that the property was in good condition. When they demolished a ceiling during renovation work in 2023, they found fire and soot damage to the ceiling joists and floorboards, caused by a fire around 1980.
The buyers argued that this damage had nothing to do with the age of the house. The court left that point aside, and the wording of the deed was the reason. Article 21 of their purchase agreement placed on the buyer the absence of characteristics needed for normal use "as a result of age or through the presence of hidden defects of whatever nature". In that second category the court read an exclusion detached from the cause: "the article draws no distinction between the causes of defects" (para. 4.10). The standard warranty in clause 6.3, under which the seller warrants the characteristics needed for normal use, had thereby "lost considerable significance" (para. 4.12).
Just over three months later the outcome was reversed at the District Court of Rotterdam, on a clause that went further still on its face. It derogated from clause 6.3 and from section 7:17 of the Dutch Civil Code, and placed on the buyer the absence of characteristics for normal and special use plus any "other failure of the property to conform to the agreement". That buyer nevertheless recovered some EUR 34,000 in repair costs. The defect, a partition wall with insufficient fire resistance, stemmed from a division of the houses in 2019, and therefore from something other than age (para. 5.22).
The seller must prove the connection with age
Where the clause says nothing about the cause of the defect, the court reads age back into it. That is the line in most of the judgments discussed here, and the practical consequence is clear: a seller relying on the clause must establish the connection with age. In March 2025 the Court of Appeal of Arnhem-Leeuwarden put it in terms that the seller must "assert, and if necessary prove, that the defect in question results from the age of the house" (para. 4.10).
Listing building elements in the clause changes little. The same judgment contains the sentence that is most useful in practice: the mere fact that a defect appears in "old joists, walls or foundations" does not yet mean that the seller escapes liability (para. 4.20). In July 2025 the Court of Appeal of 's-Hertogenbosch applied that to a clause expressly naming floors, roof, foundations, pipework and drainage: "The clause does not remove the seller's liability for defects not caused by age. That applies equally where the defects concern pipework, waste pipes or drainage" (para. 3.7.2).
The same holds for the common formula under which the exclusion derogates from the standard warranty. That wording appeared both in the Rotterdam deed and in a case decided by the Court of Appeal of Arnhem-Leeuwarden in October 2024, and was construed restrictively on both occasions. According to the court it relates "only to the standards that may be required of the building quality of the house", and thus for example "to the materials with which the house was built or to the level of comfort" (para. 4.14). A broken drainage pipe fell outside that, even if subsidence was the cause.
A wider exclusion requires express wording
The clauses that did hold up say something extra. The Haarlem deed named, alongside age, hidden defects of whatever nature, which took the cause out of the picture. In February 2025 the District Court of Overijssel reached the same result by another route: that deed stated that building defects may impede the intended use and that the buyer accepts those limitations. This amounted to "a far-reaching limitation of the seller's liability" (para. 5.6), and a claim of some EUR 38,000 failed.
Even such wording offers no certainty, because the court also looks at how the provision found its way into the deed. The Rotterdam court took into account that the clause had not been negotiated, that its text came from the sellers, that the buyers had no purchasing agent, and that the parties could not recall the civil-law notary discussing the provision. Added to that, the standard warranty had been left in place while other inapplicable model provisions had been struck through, and the exclusion sat "hidden" in the second sentence of a provision headed "Age clause" (para. 5.22). The buyers therefore did not reasonably have to understand that they had signed away all liability.
Disclosure outranks the buyer's duty to investigate
Above all this stands the seller's duty of disclosure. What he conceals, no clause will cover, although the threshold is high. The District Court of North Holland set out three requirements that must be met cumulatively: reliance on the clause is unacceptable where the seller "must have known of the defect, the buyers could not have known of it, and it is a (very) serious defect" (para. 4.16). That first requirement is sharper than it looks. The seller knew of the fire around 1980 but not of damage remaining from it, and the buyers' claim failed on that distinction.
Set against that duty of disclosure is the buyer's duty to investigate, and an age clause makes it heavier. The District Court of Overijssel held that by including the clause the buyer's reasonable expectations had been sharply curtailed and that "her duty to investigate was thereby considerably extended" (para. 5.7). That buyer had expressly waived a survey in the deed even though the valuer had flagged the gutters and the lead flashing, and carried out no other investigation either. It cost her the case. Signing an age clause therefore comes with an investigative assignment attached.
Between the two duties there is a ranking, and it favours the buyer. The Court of Appeal of 's-Hertogenbosch recalled that reasonableness and fairness generally preclude a seller who has breached his duty of disclosure from arguing that the buyer investigated insufficiently (para. 3.6.3). A seller who stays silent about what he knows also forfeits that defence, however far the clause has extended the duty to investigate.
The general route of section 6:248(2) of the Dutch Civil Code is harder going. That provision requires that applying the clause would be unacceptable according to standards of reasonableness and fairness, and in the judgments discussed here the courts filled in that standard through the duty of disclosure every time. Reliance on the seriousness of the defect alone, divorced from what the seller knew, succeeded nowhere.
What does this mean for buyers and sellers?
For a buyer it starts with the wording, and only then with the defect. Where the provision deals only with the age of the property and the lower standards of building quality, the question is where the defect came from. The seller has to answer that question, because the burden of proof rests with him. An extension, an installation or a conversion of more recent date will be hard for him to attribute to age.
Where the buyer also accepts defects as such, in whatever words, the case shifts to what the seller knew. Even then there is room, because the circumstances surrounding signature count. Three of those come from a 2013 judgment of the Supreme Court of the Netherlands: the text was not negotiated, the buyer had no legal assistance, and the model contract came from the other party. If those three are established, the reason for attaching great weight to the linguistic meaning falls away (para. 3.4.2). The Rotterdam court reasoned along those lines; two other district courts went the other way.
For a seller it works in reverse, with two things to do. Anyone counting on protection should know that a reference to age, a list of building elements and the common derogation formula were all construed restrictively in these judgments. The provisions that did hold up had the buyer accept defects without tying them to age. That is a choice made before signature and not afterwards. And what he knows, he discloses, because no wording survives the concealment of a serious defect.
What remains is what the court makes of the deed as a whole, and that yields the sharpest observation of the series. An exclusion that takes away more than the heading of the provision promises is held against the party who drafted it. Anyone writing a clause that covers everything would do well to name it accordingly.
Frequently asked questions
From what construction year does an age clause apply?
There is no fixed threshold, and the figure says little about the reach of the clause. The judgments discussed here featured thresholds of forty, sixty-three, eighty-five and one hundred years, sometimes on a far older property: a house dating from 1899 appeared in a deed referring to more than forty years old. What decides is what the provision says about defects and their cause.
Is a survey necessary where there is an age clause?
Waiving one can weigh heavily against the buyer. In the Overijssel case it counted that the buyer had expressly waived a survey in the deed while the valuer had flagged the gutters and the lead flashing. A survey is no guarantee either: in the Haarlem case the pre-purchase inspection reported the house to be in good condition, while the fire damage only became visible after demolition work.
Can a buyer have the age clause amended?
Yes, and it is the only certainty available in advance. A buyer can narrow its reach by limiting it to defects arising from age, or by carving out elements he has had inspected. Two of the clauses discussed here open that door themselves, with a proviso for whatever the seller has warranted.
Cited case law
Supreme Court: ECLI:NL:HR:2013:BY8101 (5 April 2013, where it is established that the text was not negotiated, that legal assistance was absent and that the model contract came from the other party, the reason for attaching great weight to the linguistic meaning falls away), with the Advocate General's opinion ECLI:NL:PHR:2013:BY8101 (on the weight of an entire agreement clause included as a standard provision in a model contract).
Courts of appeal: ECLI:NL:GHSHE:2025:2102 ('s-Hertogenbosch, 29 July 2025, interlocutory judgment, the clause does not remove liability for defects not caused by age, not even for expressly named pipework); ECLI:NL:GHARL:2025:1674 (Arnhem-Leeuwarden, 18 March 2025, interlocutory judgment, the seller must assert and if necessary prove that the defect results from age); ECLI:NL:GHARL:2024:7295 (Arnhem-Leeuwarden, 22 October 2024, the derogation formula concerns building quality and level of comfort, not a defective drainage pipe).
District courts: ECLI:NL:RBROT:2025:3457 (Rotterdam, 26 February 2025, a clause very wide on its face construed restrictively, partly because the exclusion sat hidden in a provision headed Age clause); ECLI:NL:RBOVE:2025:973 (Overijssel, 19 February 2025, a clause under which the buyer accepts building defects limits the standard warranty far-reachingly); ECLI:NL:RBNHO:2024:13702 (North Holland, 6 November 2024, hidden defects of whatever nature makes the cause irrelevant, with the three-part test for setting the clause aside).