A latent defect (verborgen gebrek) is a flaw in a purchased item that was not visible at the time of sale and only appears later, such as a leaking roof. Dutch law has no separate rule for it. The question is whether the item meets the contract under the conformity requirement of article 7:17 Dutch Civil Code (BW).
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Is the seller always liable for a latent defect?
No. The test is whether the buyer could expect the item to be free of this defect, given its nature, age, price and the seller’s statements. A house of 80 years old may have defects a new build should not have. An age clause or “as is” clause can shift risk, but not for defects the seller knew about and concealed.
Seller’s duty to disclose and buyer’s duty to investigate
The seller must disclose defects it knows about and that matter to the buyer. The buyer must investigate what is reasonable, for example with a building survey. If the seller knew and stayed silent, the seller’s duty to disclose generally outweighs the buyer’s duty to investigate.
How quickly must you act?
You must notify the seller within a reasonable time after you discovered, or should have discovered, the defect (article 7:23(1) BW). For consumers, notice within 2 months of discovery is always on time. Claims then expire 2 years after the notice (article 7:23(2) BW). See also duty to complain.
Frequently asked questions
What can I claim?
Repair, replacement or delivery of what is missing (article 7:21 BW), damages, or in serious cases dissolution of the contract (article 6:265 BW).
Does a consumer get extra protection?
Yes. For consumer goods, a defect appearing within 1 year of delivery is presumed to have existed at delivery (article 7:18(2) BW).
Related terms
- Non-conformity in a house purchase
- Duty to complain
- Error (dwaling)
- Conformity requirement (conformiteit)
Our civil law team assesses whether a defect gives you a claim against the seller. Want to know what this means for your situation? Book a free introductory meeting.
