Foundation damage: who is liable and what can you do?

Who is liable for foundation damage depends on the cause: nearby construction work, a drop in groundwater level, a defect the seller knew about or deferred maintenance each point to a different party. The most important exception to recovering your loss is time: if you wait too long to notify the other party or to bring a claim, your rights may lapse even when the other party is at fault.

Below we explain how liability for foundation damage is assessed under the Dutch Civil Code (Burgerlijk Wetboek, BW), what your position is as a buyer or apartment owner and which deadlines apply.

Why is foundation damage so common in the Netherlands?

Large parts of the country are built on soft peat or clay. Many homes from before about 1970 rest on wooden piles that only last as long as they stay under water.

When the groundwater level drops structurally, the tops of those piles dry out and start to rot. The foundation then gradually loses its bearing capacity. Other homes have shallow foundations without piles, which are sensitive to drying out and subsidence of the soil. These physical facts matter legally. Not every foundation problem is the result of someone’s fault, but that does not exclude liability of a third party either.

Where does the legal assessment start?

With the cause. Without a sound technical analysis of what caused the damage, no party can be held liable.

Foundation damage can result from a lowered groundwater level due to drainage or changes in water management, from construction, demolition or pile-driving work nearby, from soil subsidence, from tree roots or from deferred maintenance. Often several causes play a role at the same time. Depending on the situation, liability may rest with a contractor or its client, a municipality, a water board or utility company, a previous owner or the owners’ association (VvE).

Besides the cause, the court looks at whether the damage was foreseeable, whether the risks were known and what each party knew. Foundation cases are rarely decided on abstract standards. What usually decides the case is whether reports, correspondence and other facts show that a party acted wrongfully or withheld relevant information.

When is a third party liable in tort?

A third party is liable under Article 6:162 of the Dutch Civil Code (BW) if it acted wrongfully, the act can be attributed to it and the act caused your damage. You must prove all three elements.

A typical example is a contractor who drives piles or lowers the groundwater for a building project next door, without adequate monitoring. If cracks appear in neighbouring homes during the work, the contractor and possibly its client may be liable. A pre-construction survey (bouwkundige opname) of surrounding buildings, made before the work starts, is then crucial evidence. Ask for it if work is announced in your street.

Article 6:174 BW adds a strict liability for the possessor of a building or structure that does not meet the requirements that may be expected of it and thereby creates a danger. That rule can apply, for example, when a defective neighbouring structure causes damage to your property. Causation still has to be established.

Can the municipality or water board be liable?

Yes, if its unlawful conduct demonstrably contributed to the damage. If the government acted lawfully, compensation may still be possible through a claim for disadvantage compensation (nadeelcompensatie).

Examples are a municipality that failed to maintain its sewers, or works in the public space that lowered the groundwater level. A public body does not enjoy a general exemption from liability in tort. Where the damage results from a lawful decision or act in the public interest, the rules on disadvantage compensation in Title 4.5 of the General Administrative Law Act (Awb), in force since 1 January 2024, may apply. You then submit an application to the body concerned rather than bringing a claim in court. In both routes, solid technical evidence of the causal link is needed.

What if you discover foundation damage after buying a property?

Then the central question is whether the property has the characteristics you could reasonably expect under the purchase agreement (Article 7:17 BW). If it does not, the seller may be liable, but you must notify the seller within a reasonable time after discovering the defect.

Relevant factors include the age and type of the property, its location, visible signs at the time of purchase, the sales documentation and questionnaire, any survey that was carried out and whether the seller knew about earlier damage, investigations or warnings. Many purchase agreements contain an age clause or a specific clause on the foundation. Such clauses can limit the seller’s liability, but not for defects the seller knew about and did not disclose.

The seller’s duty to disclose and the buyer’s duty to investigate interact. A buyer of an old house in an area known for foundation problems may be expected to investigate further if there is reason to. A seller, on the other hand, cannot hide behind the general age of the house if he knew of concrete signs of serious foundation problems. If essential information was withheld, mistake (dwaling, Article 6:228 BW) or fraud (bedrog, Article 3:44 BW) may also be relevant.

Under Article 7:23 BW, you lose your rights against the seller if you do not notify the seller within a reasonable time after you discovered, or should reasonably have discovered, the defect. Put the notice in writing. A claim against the seller then becomes time-barred two years after that notice. The text of these provisions is available on wetten.overheid.nl.

What is the role of the owners’ association?

In an apartment building, the foundation is normally part of the common structure. The owners’ association (Vereniging van Eigenaars, VvE) is then responsible for investigation, decision-making and repair.

Every VvE must build up a reserve fund for maintenance under Article 5:126 BW, but that reserve is rarely enough for full foundation repair. Foundation problems in a VvE therefore often escalate: investigations are postponed and members disagree about costs.

As an apartment owner you can ask the subdistrict court (kantonrechter) to annul a resolution of the general meeting within one month after you learned of it (Article 5:130 BW). If the meeting unreasonably refuses to decide on investigation or repair, you can ask the court to authorise that decision itself (Article 5:121 BW).

How long do you have to bring a claim?

A claim in tort is time-barred five years after you became aware of both the damage and the party liable for it (Article 3:310 BW). There is also an absolute limit of twenty years after the event that caused the damage.

With foundation damage, the moment of awareness is not always easy to establish, because the damage develops gradually. Do not rely on that uncertainty. A written letter in which you clearly reserve your right to compensation interrupts the limitation period (Article 3:317 BW), after which a new period starts. For claims against a seller, the short deadlines of Article 7:23 BW described above apply.

What should you do if you suspect foundation damage?

Have an independent structural or geotechnical survey carried out, document the damage and hold the parties you think are responsible liable in writing. The earlier you act, the stronger your position.

Take dated photographs of cracks and note when you first saw which signs. Collect the purchase deed, the sales questionnaire, earlier survey reports, correspondence with the VvE and information about work in the area. Crack monitors or level measurements over several months can show whether the damage is still progressing.

A well-prepared notice of liability (aansprakelijkstelling) often leads to negotiations and a settlement without court proceedings. Whether that works depends on the strength of your file, the attitude of the other party and the size of the damage. If no settlement is reached, court proceedings are only viable if your file was built from the start with evidence and causation in mind. In some cases, the court can order a preliminary expert report (voorlopig deskundigenbericht, Article 202 of the Code of Civil Procedure) before main proceedings start.

What should you check as the owner or buyer?

As owner you must prove the cause, the liable party and the causal link (Article 150 of the Code of Civil Procedure). Check these points:

• When you first saw cracks or sticking doors, recorded with dated photographs.
• Whether a pre-construction survey (bouwkundige opname) exists for work nearby.
• Whether the sales questionnaire, purchase agreement or survey report mentions the foundation.
• Whether you notified the seller in writing within a reasonable time (Article 7:23 BW).
• Whether your five-year limitation period under Article 3:310 BW has been interrupted in writing.

What should you check as the seller?

As seller you must disclose what you know about the foundation; an age clause does not protect you against known defects. Check these points:

• Which survey reports, municipal letters or VvE minutes about the foundation you hold.
• Whether you answered the questions on the foundation in the sales questionnaire completely.
• Whether the purchase agreement contains an age clause or a specific foundation clause.
• Whether the buyer’s notice of the defect came within a reasonable time after discovery.
• Whether more than two years have passed since that notice (Article 7:23(2) BW).

What can we do for you with foundation damage?

Foundation damage combines liability law, real estate law and construction law. Concretely:

• We assess the survey reports and identify which party can be held liable for the cause found.
• We draft the notice of liability and the letter that interrupts the limitation period.
• We review your purchase agreement and notify the seller under Article 7:23 BW.
• We file an application for disadvantage compensation with the municipality or water board.
• We request a preliminary expert report from the court or start proceedings where settlement fails.
• We advise apartment owners on VvE resolutions and the one-month deadline of Article 5:130 BW.

Summary

• The cause of the damage determines who may be liable: a contractor, a public body, a seller, the VvE or you as owner.
• Third parties are liable in tort under Article 6:162 BW if you can prove wrongful conduct and a causal link.
• After a purchase, notify the seller in writing within a reasonable time after discovery; the claim is then time-barred two years later (Article 7:23 BW).
• A tort claim is time-barred five years after you knew of the damage and the liable party (Article 3:310 BW).
• Start with an independent technical survey and careful documentation.

Frequently asked questions