A Great Place to LiveSo you have come to the Netherlands and have found a great place to live but…you find yourself faced ...
LEGALthat might occur. Make sure you keep a written record         ‘damages for consequential loss’ Case law has shown    ...
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A great place to live.. Christian Malipaard

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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?

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A great place to live.. Christian Malipaard

  1. 1. A Great Place to LiveSo 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 hostinga population of uninvited small furry guests, or perhaps a team of hungry pestsis happily feasting on the rustic beams in your attic. Who is to blame for this, ormore 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 3 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- 2 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 problems8 the xpat journal 2012 | |
  2. 2. LEGALthat 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 besible, 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 alertTenancy the previous owner or contractor. If he is not willing toThe main rule here is that, by law, you may expect to fix the problem or pay for the damages, you will have tohave full quiet enjoyment of your rental and that if take the matter to the courts. If you rent, you can take thethere 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- gyou to carefully inspect your ‘home-to-be’ before or ry out the necessary repairs you can have them donewhen you move in, preferably together with your land- and reclaim the costlord. This way there can be no misunderstandings over • sk the court permission to carry out the above, be- athe state of the property, while you can alert him to the forehand, just to be suredefects that need to be remedied. He will be liable for • sk for a rent reduction for the period the landlord adefects 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- skeep up the maintenance of the property and that you sessment committee.correct problems quickly. It will save you money andgrief 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 settlecourse of normal daily life. Damages that you are not re- your differences with the other contracting party to yoursponsible for can usually be claimed under your house- own satisfaction, be sure to contact an expert.hold insurance policy. Should you not have householdinsurance: be prepared for the fact that your landlordcan only be held liable if he can be held responsible! ABOUT THE AUTHORThis could be the case if he was behind with his mainte- Christian Malipaard is a lawyer with the Legal Expat Desk ofnance duties, carried out sloppy repairs or failed to react GMW Advocaten. He can be ­ ontacted at c.malipaard@gmw.nl, cto a complaint on your side, resulting in higher damages tel.: 070 - 361 50 48. www.legalexpatdesk.nl www.gmw.nl/enthan necessary. follow the Legal Expat Desk on ­ ww.twitter.com/legalexpatdesk, wA word of advice for both landlords and contractors: www.facebook.com/legalexpatdeskbeware that your tenants and buyers might also claim the xpat journal | 2012 | 9

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