Hidden defects time limit: complaint and limitation under Dutch law

The time limit for hidden defects in Dutch property law consists of two deadlines. Under Article 7:23(1) of the Dutch Civil Code (BW) you must notify the seller within a reasonable time (bekwame tijd) after you discovered, or should reasonably have discovered, that the property does not conform to the contract; under Article 7:23(2) BW your claim then becomes time-barred two years after that notification, unless you interrupt the period. The main exception: if the seller promised a quality the property lacks, or kept quiet about facts he knew or should have known, the notification period only starts on actual discovery.

Both clocks are triggered by discovery and notification, not by the transfer of the property. This page explains what counts as a hidden defect (verborgen gebrek), how the deadlines work, how the buyer’s duty to investigate relates to the seller’s duty to disclose, and what applies to new-build homes.

What counts as a hidden defect?

Dutch law does not use “hidden defect” as a statutory term. The rule is conformity: under Article 7:17 BW the property must have the characteristics the buyer could expect on the basis of the contract, including those needed for normal use.

In the model purchase agreement used for most Dutch home sales, the seller also warrants that the property has the characteristics needed for normal use as a dwelling. A defect is “hidden” if it existed at transfer, was not visible on a reasonable inspection, and is serious enough to stand in the way of that normal use.

Foundation subsidence concealed behind new plasterwork, structural rot, an unsafe electrical installation, serious soil contamination or an extension built without the required permit can qualify. A squeaking floorboard, a dripping tap or dated decoration do not, because they do not prevent normal use. A defect that is expensive to repair is not automatically a defect that prevents normal use.

When does a claim succeed?

Four conditions must be met together. The defect was present at transfer; the buyer could not reasonably have discovered it in a proper pre-purchase investigation; it stands in the way of normal use or departs from what the contract promised; and the buyer did not accept the risk, for example through an age clause or by buying with knowledge of the problem.

What are the two deadlines?

First you must complain to the seller within a reasonable time after discovery (Article 7:23(1) BW). Then you must sue or interrupt the limitation period within two years of that complaint (Article 7:23(2) BW).

How fast must you complain?

For the sale of a house there is no fixed statutory period. The two-month safe harbour in Article 7:23(1) BW applies to a consumer purchase (consumentenkoop), which under Article 7:5(1) BW concerns movable goods, so it does not apply directly to a house.

What is reasonable depends on the nature and seriousness of the defect, the investigation needed to establish what is wrong, the expertise of the parties and whether the delay has harmed the seller, for example by making the cause harder to establish. If the property lacks a quality the seller said it had, or the defect concerns facts the seller knew or should have known but did not disclose, the period runs only from actual discovery, not from when you should have discovered it (Article 7:23(1) BW, second sentence).

In practice, notify as soon as you have a clear picture. If you are waiting for an expert report, say so in writing straight away rather than waiting for the report.

What must the notification contain?

The notification must be specific. Describe the defect, state when and how you discovered it, invoke non-conformity and hold the seller liable. Send it by registered post or by email with proof of receipt, because you must be able to prove that you notified in time.

How does the two-year limitation period work?

Under Article 7:23(2) BW, claims and defences based on non-conformity become time-barred two years after the notification. The period does not run as long as the buyer cannot exercise his rights because of the seller’s intent (Article 7:23(3) BW).

Two years often expires while negotiations are still running. Under Article 3:317(1) BW you can interrupt the period with a written communication in which you unequivocally reserve your right to performance; a new two-year period then begins. Send such an interruption letter (stuitingsbrief) well before each expiry date and keep proof of it. See also our guide to the prescription of claims under Dutch law.

How do the duty to investigate and the duty to disclose interact?

Liability is decided by weighing the buyer’s duty to investigate (onderzoeksplicht) against the seller’s duty to disclose (mededelingsplicht). Where the two collide, the seller’s duty to disclose what he actually knew generally prevails.

A reasonable buyer of a home commissions a technical survey (bouwtechnische keuring), usually before the three-day cooling-off period of Article 7:2 BW ends or before a resolutive condition lapses. Defects in the report are no longer hidden. If the report recommends further investigation of the roof or foundations and you do nothing, you will find it very hard to argue later that the resulting defect was undiscoverable.

A seller who knows the cellar floods every winter cannot defend himself by saying that the buyer should have noticed the water marks. This applies with particular force if the seller answered a question in the standard information list (vragenlijst) inaccurately. The buyer must, however, prove what the seller knew: old repair quotes, insurance claims, statements from neighbours and an expert who can date the damage are the evidence that decides these cases.

How do contract clauses shift the risk?

A specific guarantee shifts risk to the seller; an age clause or as-is clause shifts it to the buyer. None of these clauses protects a seller who concealed a defect he knew about.

If the seller warrants in writing that the roof was replaced in a given year and does not leak, a later leak is a straightforward breach of that warranty. An age clause (ouderdomsclausule), common for older houses, records that construction, installations and materials may not meet current standards; it raises your duty to investigate and makes claims for normal wear, such as outdated wiring, very difficult.

An as-is clause (verkocht in de staat waarin het zich bevindt) shifts the risk of defects that neither party knew about. It cannot be relied on by a seller who deliberately withheld a known, serious defect. Where a professional seller uses such a clause in general terms against a consumer, it can also be challenged as unreasonably onerous.

What applies to new-build homes?

A buyer of a new-build home deals with a contractor, and the rules on construction contracts apply. Since the Quality Assurance Act for Building (Wet kwaliteitsborging voor het bouwen, Wkb) took effect on 1 January 2024, Article 7:758(4) BW makes the contractor liable for defects not discovered at delivery, unless they cannot be attributed to the contractor.

Before that date, the contractor was in principle discharged at delivery from defects the client should reasonably have discovered then (Article 7:758(3) BW), and the client had to prove that a later defect was attributable to the contractor. The new paragraph shifts that burden to the contractor. Article 7:758(4) BW cannot be set aside to the detriment of a client who is a consumer, and towards other clients only by an express clause in the contract. See also liability for construction defects.

Are expiry clauses in standard building terms valid?

Standard building conditions often contain contractual expiry periods (vervaltermijnen), for example five years after delivery, after which the client’s rights lapse regardless of when the defect appears. Whether such a clause is unreasonably onerous towards a consumer is contested, and courts and arbitrators have reached different conclusions.

Do not rely on the argument that the clause is unfair. Complain in writing as soon as a defect appears, and start proceedings or interrupt the period in good time.

What should you do when you discover a hidden defect?

Record the evidence, do not repair, have an expert investigate and notify the seller in writing straight away. The order matters, because the first steps protect the evidence and the notification protects the deadline.

1. Photograph and film the defect, note the date of discovery and keep the survey report, purchase deed, information list and estate agent’s particulars together.
2. Do not start repairs except emergency measures, and document those first. Repairs destroy evidence of the cause and age of the damage.
3. Instruct an independent expert to identify the defect, its cause, when it arose and the cost of repair.
4. Notify the seller in writing within a reasonable time, without waiting for the expert report, and put the seller in default (ingebrekestelling) with a reasonable deadline if he must be given the opportunity to repair.
5. Put the two-year limitation date in your calendar and interrupt it in writing if negotiations continue.

What should you check as a buyer?

• Did the survey report mention the defect, or recommend further investigation of that part?
• Does the purchase agreement contain an age clause, as-is clause or specific guarantee that covers the defect?
• Did the seller answer the information list correctly on this point?
• Have you notified the seller in writing, with proof of receipt?
• When does the two-year period after your notification end, and have you interrupted it?

What should you check as a seller?

• When did the buyer discover the defect, and was the notification given within a reasonable time?
• Did you know about the defect, and is that shown by any documents, quotes or insurance claims?
• Was the defect visible, or mentioned in the buyer’s survey report?
• Does an age clause or as-is clause apply, and did you disclose everything you knew?
• Has the two-year limitation period expired without a valid interruption?

What can we do for you with hidden defects?

Our real estate lawyers advise buyers and sellers of Dutch property on non-conformity claims.

• We assess whether the defect meets the normal-use threshold, against the contract, the survey and the information list.
• We draft the notification and the notice of default, and the interruption letters that keep the claim alive.
• We instruct an expert and review or challenge expert reports.
• We calculate the claim for repair costs, price reduction or damages.
• We negotiate with the seller, contractor or insurer and conduct proceedings if needed.

Summary

• Notify the seller in writing within a reasonable time after discovery (Article 7:23(1) BW); for houses there is no fixed two-month period.
• Your claim becomes time-barred two years after the notification unless you interrupt it in writing (Articles 7:23(2) and 3:317 BW).
• The seller’s duty to disclose what he knew generally prevails over your duty to investigate.
• Age and as-is clauses shift risk to the buyer, but never protect a seller who concealed a known defect.
• For new-build contracts since 1 January 2024, the contractor is liable for defects not discovered at delivery unless they are not attributable to him (Article 7:758(4) BW).

Frequently asked questions