Introduction
When buying a house or other real estate, a dispute often arises only after transfer: the property turns out to have a defect the buyer did not know about. Whether that leads to the seller's liability depends on the interplay between the seller's duty to disclose and the buyer's duty to investigate, and on what the parties agreed in the contract of sale. For the purchase of a home by a consumer there is, moreover, a written-form requirement and a three-day cooling-off period (Article 7:2 of the Dutch Civil Code, DCC).
The seller's duty to disclose
The seller must inform the buyer of known defects that stand in the way of normal use. If the seller conceals a defect they knew or ought to have known, they cannot in principle rely on the argument that the buyer should have investigated more thoroughly. As a rule the duty to disclose prevails over the duty to investigate: a party who stays silent where speaking was required bears the risk.
The buyer's duty to investigate
At the same time, the buyer is expected to investigate the state of the property within reasonable limits, certainly for visible or foreseeable defects and for older objects. The Supreme Court confirmed that the duty to investigate remains in force even where the seller may have had something to disclose: for a matter that is essential to the buyer, a possible duty to disclose does not release the buyer from their own investigation, especially where the contract of sale expressly offered that opportunity (Supreme Court 16 December 2022, ECLI:NL:HR:2022:1870). An age clause, or a clause that the seller never lived in the property, can moreover place the risk contractually on the buyer.
Non-conformity, complaint duty and limitation
Where the property does not meet what the buyer could expect on the basis of the contract, there is non-conformity (Article 7:17 DCC). The buyer can claim repair, damages, a price reduction or rescission. A complaint duty applies (Article 7:23 DCC): a buyer who discovers a defect must complain within a reasonable time, on pain of losing their rights, and the claim is time-barred two years after the complaint. That short limitation period cannot be circumvented by recasting the claim on another basis: the Supreme Court held that the period of Article 7:23(2) DCC also applies to a claim for damages based on fraud, where the same facts could also have supported a claim of non-conformity (Supreme Court 17 November 2017, ECLI:NL:HR:2017:2902).
What decides the outcome
What is usually decisive is the question of who knew or ought to have known what, the precise wording of the contract of sale, and the timeliness of the complaint. A careful record of what was disclosed and investigated, on both sides, determines whether a claim succeeds. How those factors work out in asbestos cases is set out in the analysis of asbestos after buying a home. Where the dispute concerns not a defect but the extent of what was sold, it turns on the interpretation of the contract of sale and the deed of transfer, as in the analysis of the cadastral boundary that does not match the fence.