You buy a home and discover asbestos after the purchase. Can you hold the seller liable? Often you can, through the warranty against hidden defects (Article 1641 et seq. of the Civil Code), but the conditions are strict and time works against you. Asbestos is not automatically a hidden defect. This article reviews the conditions, the pitfalls and the sanctions, and places everything in the context of our guide on asbestos in real estate.
The three conditions
Article 1641 of the Civil Code grants the buyer a warranty when three conditions are cumulatively met. The defect must be hidden, it must already exist at the moment of sale, and it must be sufficiently serious.
The first condition, the hidden character, means that the defect could not have been visible during a normally attentive inspection immediately after delivery (Cass. 29 March 1976; Cass. 6 December 2001). The buyer is expected to adopt a reasonably attentive attitude, but not to carry out destructive or highly technical specialist investigations. Asbestos incorporated into a substrate, a cavity wall or an enclosed structure is generally invisible and therefore in principle hidden.
The second condition rarely gives rise to discussion in asbestos cases. Since the material was used before the general ban of 2002, the defect has almost always existed long before the sale.
The third condition is the real stumbling block. The defect must render the property unfit for the use for which it is intended, or reduce that use to such an extent that the buyer, had he been aware of it, would not have bought it or would only have paid a lower price.
Why mere presence is not enough
The Court of Cassation has interpreted this seriousness threshold for liability strictly. The mere impairment of the economic value of the property is insufficient; a substantial reduction of the use itself is required (Cass. 9 May 2016). The mere presence of asbestos, or the fact that the property is worth less as a result, therefore does not in itself constitute a hidden defect. Bonded asbestos in good condition, which does not release fibres under normal use, generally does not meet that threshold.
It is different where the asbestos entails a concrete remediation obligation or restriction of use. Thus, asbestos in the subsoil of a plot of land sold was recognised as a hidden defect precisely because it entailed a remediation obligation and a restriction of use, and this even without exceeding a statutory standard (Comm. Court Dendermonde 12 September 2013). The key therefore lies in the consequence for the use, not in the presence as such.
The role of the intended use
In this assessment, the intended purpose of the property weighs heavily. If the home was advertised and sold as move-in ready, asbestos will more readily qualify as a defect: the buyer could reasonably expect a habitable and safe whole. If, on the other hand, the property was expressly sold for renovation or demolition, the presence of asbestos is often a foreseeable cost inherent to the project, and not a hidden defect. Advertisements, emails, the preliminary sales agreement and any specifications made available are of great importance here: they help to determine the expectations the buyer could legitimately hold. Anyone who buys an old home to strip it entirely can hardly complain about asbestos discovered during that renovation.
Act quickly: the short period is a period of forfeiture
A buyer relying on a hidden defect must do so within a short time after discovery (Article 1648 of the Civil Code). This is not an ordinary limitation period but a period of forfeiture (Cass. 29 November 2013): once it has expired, your claim is irrevocably extinguished. The judge assesses in concreto what constitutes a short time, taking into account the nature of the defect and the circumstances.
A few nuances are crucial. Serious negotiations with the seller about a solution can suspend the period (Liège 22 September 2016), but an ordinary, non-committal email is insufficient for that (Mons 5 June 2014). At the same time, the period does not operate mechanically: where asbestos only comes to light years later during a renovation, a reaction shortly after that late discovery may still be timely (Court of First Instance Antwerp 16 February 2016, ruling on dry rot detected seven years after the purchase during renovation works). The clock therefore starts running from discovery, not from the purchase. Nevertheless, caution is warranted: place the seller in default quickly and in writing and seek advice immediately.
Choose the correct legal basis
A less well-known but decisive pitfall is the choice of the legal basis. A buyer confronted with a hidden defect has only the warranty claim available and no longer the claim for conforming delivery (Cass. 19 October 2007). You therefore cannot freely use the two interchangeably. If the problem qualifies as a hidden defect, you must follow that route, with the short period attached to it. An incorrect qualification or a wrongly chosen action can ruin your entire case. Have the qualification carefully made in advance.
The sanctions and who chooses
If the conditions are met, the law offers the buyer two classic sanctions: money back or price reduction. You can have the sale rescinded and reclaim the price against return of the property (the so-called action for rescission), or you keep the property and claim a price reduction. Importantly, this choice belongs to the buyer: it is the buyer who decides, and the court may not impose a remedy in kind on him that he does not wish (Cass. 23 March 2017).
On top of that, damages may be awarded where the seller knew of the defect. For a professional seller, there is a statutory presumption of knowledge (Article 1645 of the Civil Code): he is deemed to have known of the defect and is then required to return the price and compensate all damages. Whether a seller qualifies as a professional and whether he can still rely on an exoneration clause is discussed in our article on exoneration and warranty clauses regarding asbestos.
Looking ahead: Book 7 of the Civil Code
Finally, new legislation is on the way. The new Book 7 of the Civil Code will replace the classic distinction between visible and hidden defects with a single broad conformity obligation: the seller must deliver goods that correspond to what was agreed. At the time of this publication, Book 7 has not yet entered into force. Anyone buying or selling today therefore remains under the regime of Articles 1641 et seq. of the Civil Code, but would do well to monitor its introduction.
How Reius Advocaten can assist you
Have you discovered asbestos after buying a home, or are you being pursued as a seller? Reius Advocaten assesses whether the conditions for a hidden defect are met, safeguards the short forfeiture period, and determines the strongest legal basis and sanction for you, from price reduction to rescission. Feel free to contact us at info@reius.be or via the contact form.