So 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 heating 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?

1. A Great Place to Live
So 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 an independent professional. If you like, you can find
By Christian Malipaard checklists on the Internet. Should you fail to fulfil your
T
obligation to have this examination carried out, it will
he answer to this question first of all de- be extremely difficult to hold the seller liable later on.
pends on whether you are renting your
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home or own it. If you own it then the age Hidden defects that impede a
of the property is of great importance; all ‘normal’ use of the property
the way from very old to brand new! It is always possible that a really serious, previous-
ly undetected, defect turns up that hinders the ‘normal’
Ownership use of your new home. For instance, half a year after
In the case of ownership of a pre-existing home (mean- buying the house, you drain the bathtub and the water
ing you are not its first inhabitant) the crucial moment ends up in the living room downstairs. Or the wooden
for liability, as far as defects go, is the actual transfer of floor develops a dispirited sag underneath your exqui-
ownership. site but very heavy dining room table. In these cases,
The basic rule is: once you own it, the property becomes beware, however: the older a property is, the more likely
your problem. Thankfully, however, there are four ex- it is to have certain defects that cannot be blamed on
ceptions to this rule: anyone or anything but old age!
1 4
The seller’s ‘obligation of disclosure’ A newly built property
Under the Dutch Civil Code, the seller of a real es- means years of warranty
tate property is obligated to provide a prospective Different rules apply here: the building contrac-
buyer with detailed information on its current state and tor is liable for any defects and/or deficiencies until the
on the residential environment (you don’t want to wake moment he delivers the property into your hands. He
up one morning to find someone putting up a new high- must take you on an inspection of the property and you
rise right outside your bedroom window…). Any failure must sign a piece of paper that you accept the property
to inform you on these issues makes him liable. as is. Before you do this, it is therefore crucial that you
have an independent professional inspect the prem-
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The buyer’s ‘obligation of examination’ ises and make a report. It is not unusual to find, say, 21
The vendor cannot be held responsible for de- defects! Don’t allow yourself be coerced into signing a
fects that are obvious to the naked eye or would so-called pre-delivery report: new issues that must be
have been clear had you taken the trouble to carry out dealt with might still pop up. After the final delivery, the
a more thorough investigation. How thorough you can building contractor has a grace period of three months
be expected to be depends very much on the age of the to fix everything you noted and brought to his attention.
property. This is why it is always advisable to have a This period actually stretches out to six months (the so-
structural inspection carried out, and a report made up, called ‘maintenance’-period) for any other problems
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2. LEGAL
that might occur. Make sure you keep a written record ‘damages for consequential loss’ Case law has shown
.
of everything and inform the contractor as soon as pos- that if accidents happen and hospital bills have to be
sible, just to be on the safe side. For hidden defects the paid, the bills add up quickly!
contractor remains liable for up to five years and for se-
rious structural mistakes even up to 20 years: a luxury What to Do in Case of a Defect?
the buyer of an ‘old’ house does not have… If, as a buyer, you are confronted with a hidden defect,
Dutch case law says that you have two months to alert
Tenancy the previous owner or contractor. If he is not willing to
The main rule here is that, by law, you may expect to fix the problem or pay for the damages, you will have to
have full quiet enjoyment of your rental and that if take the matter to the courts. If you rent, you can take the
there are any defects that impede this legal right, your following course of action. You:
landlord/lady will have to fix them. It is important for • ive notice to the landlord of default. If he fails to car-
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you to carefully inspect your ‘home-to-be’ before or ry out the necessary repairs you can have them done
when you move in, preferably together with your land- and reclaim the cost
lord. This way there can be no misunderstandings over • sk the court permission to carry out the above, be-
a
the state of the property, while you can alert him to the forehand, just to be sure
defects that need to be remedied. He will be liable for • sk for a rent reduction for the period the landlord
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defects he knew about but ‘forgot’ to tell you about! was in default
(Advice for the landlords among you: make sure you • tart a so-called ‘defect procedure’ with the rent as-
s
keep up the maintenance of the property and that you sessment committee.
correct problems quickly. It will save you money and
grief in the long run.) Finally: disputes about defects and deficiencies are nev-
Once you have moved in, you yourself will be financially er straightforward as they depend on the circumstances,
responsible for small repairs and such – as occur in the and exceptions might apply. If you are not able to settle
course of normal daily life. Damages that you are not re- your differences with the other contracting party to your
sponsible for can usually be claimed under your house- own satisfaction, be sure to contact an expert.
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! ABOUT THE AUTHOR
This could be the case if he was behind with his mainte- Christian Malipaard is a lawyer with the Legal Expat Desk of
nance duties, carried out sloppy repairs or failed to react GMW Advocaten. He can be ­ ontacted at c.malipaard@gmw.nl,
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to a complaint on your side, resulting in higher damages tel.: 070 - 361 50 48. www.legalexpatdesk.nl www.gmw.nl/en
than necessary. follow the Legal Expat Desk on ­ ww.twitter.com/legalexpatdesk,
w
A word of advice for both landlords and contractors: www.facebook.com/legalexpatdesk
beware that your tenants and buyers might also claim
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