Hidden defects when selling a house: what is your liability as a seller?

When you sell a property, you want to close the file once the deed is signed. Yet a buyer can come back months later with a complaint about hidden defects after the sale of a house, and then everything turns on the seller's liability. How far that liability goes depends on what you knew, what you disclosed and what the compromis (the preliminary sale agreement) says. This article explains how the rules work in Belgium and how you can protect yourself as a seller in advance.

What is a hidden defect in legal terms?

The rules on hidden defects in a sale are set out in the Civil Code (article 1641 and following of the old Civil Code, which still applies to the sale contract). A seller is liable for defects that make the property unfit for its intended use, or reduce that use so much that the buyer would not have bought it, or would have paid a lower price.

Not every problem is a hidden defect. Judges usually look at three conditions:

• The defect is hidden. A reasonably attentive buyer could not see it during an ordinary viewing. A visible crack in the facade or an obvious damp stain does not count.
• The defect already existed at the time of the sale. At least in an early form. Damage that only arises after the transfer of ownership is not covered.
• The defect is serious enough. Normal wear and tear in an older house is not a hidden defect. Someone buying a house from the 1960s can expect that not everything is new.

Typical examples from case law include rising damp behind recently applied plaster, a leaking roof that was patched up just before the sale, dry rot in the timber floor structure or a septic tank that does not work.

When are you liable as a seller?

The law distinguishes between a seller acting in good faith and a seller acting in bad faith. That distinction determines how much you stand to lose.

If you did not know about the defect yourself, you are acting in good faith. The buyer can then choose between having the sale dissolved (he returns the property and gets the price back) or claiming back part of the price. You also have to reimburse the costs of the sale, but no additional damages.

If you knew about the defect and kept quiet, you are acting in bad faith. On top of dissolution or a price reduction, the buyer can then claim full compensation, for example for repair costs, renting another home during the works or loss of value. In serious cases this is considered fraud, and the whole agreement can be called into question.

Important: anyone who sells professionally, such as a property developer or contractor, is presumed to know about the defects. That presumption does not apply to a private seller. The buyer then has to prove that you knew about the defect.

The exemption clause in the compromis: protection with limits

Almost every Belgian compromis contains a clause in which the seller excludes liability for hidden defects. The buyer then purchases the property "in the condition in which it is found". Such a clause is valid and protects you in many cases.

The protection does stop where bad faith begins. A seller who knew about a defect and concealed it cannot hide behind an exemption clause. Judges take a strict view: anyone who covers up a damp problem with paint or new skirting boards just before the sale, without fixing the problem itself, will find it hard to show good faith.

So have the clause checked by your notary or estate agent, and make sure it matches what you actually know about the property. A good agent knows the standard clauses and which statements are needed in your situation. Through ImmoMakelaarVergelijker.be you can compare up to 3 BIV-licensed estate agents in your area for free.

What should you disclose to a buyer?

The simplest protection against a claim is full transparency. A defect you disclose is no longer hidden for the buyer. He buys with full knowledge of the facts and cannot invoke it later.

So disclose in writing, preferably in the compromis itself or in an annex:

• known problems with damp, roofing, drainage or foundations, even if you had them repaired at some point;
• previous water damage or flooding (see also our article on selling a home in a flood-prone area);
• renovations carried out without the required permit (see selling a house without a planning permit);
• disputes with neighbours over easements, party walls or drainage.

Then there are the mandatory certificates. In Flanders these include the EPC, the asbestos certificate for homes built before 2001, the inspection of the electrical installation, the soil certificate and the information from the flood risk assessment (watertoets). These documents do not replace your duty to disclose, but they do record a lot. Anything stated in a certificate is hard for a buyer to call a hidden defect later on.

How long does a buyer have to file a claim?

The law says the buyer must bring his claim "within a short period", counted from the moment he discovers the defect. The law does not set a fixed number of months. The judge decides case by case whether the buyer acted quickly enough, taking into account the nature of the defect and any negotiations between the parties.

For you as a seller, this means: keep all documents about the property, even after the deed. Think of repair invoices, inspection reports, photos of the condition of the property at the time of sale and your correspondence with the buyer. If a buyer comes forward with a complaint years later, these are your best evidence. The rules around the compromis also help determine which arrangements are binding.

How to limit your risk as a seller

A claim for hidden defects is expensive and unpleasant for both parties. You can limit the risk with a few concrete steps:

1. Take an honest look at the condition of your property before you put it on the market. A technical inspection by an expert can help, especially for older houses.
2. Disclose what you know, in writing. A sentence in the compromis carries more weight than a verbal remark during a viewing.
3. Repair properly, or not at all. A cosmetic fix that hides a problem will turn against you later.
4. Have the exemption clause checked by your notary.
5. Work with an experienced estate agent who asks the right questions and builds a complete file.

A realistic asking price also takes known defects into account. Reflecting the actual condition in the price reduces the chance of a dispute afterwards. A free valuation of your property gives you a first idea of what is achievable.

Frequently asked questions

Am I liable for a defect I did not know about myself?

Yes, in principle, but to a limited extent. A seller in good faith can face dissolution of the sale or a price reduction, without additional damages. If the compromis contains a valid exemption clause, you are usually protected as a private seller in good faith.

Does the clause "in the condition in which the property is found" always protect me?

No. An exemption clause does not apply to defects the seller knew about and concealed. A professional seller usually cannot rely on it either, because he is presumed to know about the defects.

Is a visible problem also a hidden defect?

No. A defect that a reasonably attentive buyer could see during a viewing is not hidden. Defects you disclosed in writing or that appear in a mandatory certificate cannot be invoked by the buyer later as a hidden defect either.

How long after the sale can a buyer hold me liable?

The buyer must act within a short period after discovering the defect. The law sets no fixed deadline, the judge decides case by case. So keep all documents about the property, even long after the deed.

In conclusion

Liability for hidden defects is no reason to postpone a sale, but it is a reason to prepare it well. Honestly disclosing what you know, getting the mandatory certificates in order and a clear clause in the compromis together offer the best protection. An agent who handles this every day makes sure nothing slips through the cracks. Compare up to 3 licensed estate agents near you for free and without obligation, and choose the one who will handle your sale with care.