You buy a home. The compromise is signed, four months later the notarial deed passes, you receive the keys and move in. And then, a few weeks or months later, you discover a problem. Damp in the cellar that was never mentioned. A roof that turns out to leak as soon as it rains hard. Asbestos behind a plasterboard that the previous owner had put up himself. Dry rot that reveals itself as soon as you start renovating.
The question you immediately ask yourself is logical: can I hold the seller liable for this? The answer is usually: yes, provided a number of strict conditions are met. The figure you can invoke in that case is called, in legal terms, the warranty for hidden defects, governed by Article 1641 et seq. of the old Civil Code. In this guide, we explain when you can invoke this warranty, which sanctions you can demand, how the exoneration clause ("sold in the state in which it is") works and — crucially — within which deadline you must act.
What must a seller guarantee you when selling a home?
The seller of immovable property has three principal obligations that often blur together in practice, but which legally each have their own rules.
First, the obligation of delivery. The seller must hand over the thing as agreed: the title deeds, the keys, all codes and all accessories indivisibly linked to the home (solar panels, possibly green certificates, warranty claims against the contractor or architect that pass on as qualitative rights). The obligation of delivery also includes a conforming delivery: the thing delivered must correspond in all respects to what was sold.
Second, the warranty against eviction. The seller must guarantee you that no third party will assert rights over the home. A mortgage that still burdens the property, a neighbour who claims a servitude, or even a mayor's decree declaring a home unfit for habitation (Brussels, 11 June 2020, RW 2022-23, issue 9, 343) can justify a warranty for eviction.
Third, the warranty for hidden defects. This is what interests us here: the seller must protect you against defects of the thing itself that you could not see at the time of the purchase. It is this third obligation that, in practice, generates the most judicial proceedings.
In practice, these three figures often coincide. A lack of an environmental permit can constitute both a hidden defect and a disturbance of right (Cass., 31 March 2017, TBBR 2018, issue 6, 323). A declaration of unfitness can be both a delivery problem and an eviction. Choosing the right legal qualification is therefore not a detail — it determines, among other things, the deadline within which you must act.
What is a hidden defect precisely?
Article 1641 of the old Civil Code defines the hidden defect as a defect that renders the thing "unfit for the use for which it is intended", or that so diminishes that use "that the buyer, had he known of the defects, would not have bought the thing or would have given only a lesser price for it". More simply: the problem must be serious enough to have influenced your purchase decision.
Three conditions must be met.
The defect must be serious. A crack in a tile or a light mould stain does not suffice. The use of the home must be affected "in an important manner". The unusability need not be definitive — a temporary but substantial diminution of use can suffice — but a mere financial reduction in value, without real limitation of use, does not suffice. The Court of Cassation has confirmed this in so many words: the impairment of the economic value alone does not suffice, there must be an essential diminution of use (Cass., 9 May 2016, case no. C.14.0404.N).
The defect must exist at the time of the purchase. The seller is not liable for problems that only arose after the transfer of ownership. As a buyer, you must prove that the defect was at least present "in germ" at the purchase (Cass., 27 April 2020, case no. C.19.0337.N). This is an important element: a roof that begins to leak ten years after the purchase due to normal ageing is not a hidden defect. A roof that leaks three months after the purchase because the construction was insufficiently watertight from the start, on the other hand, is.
The defect must be hidden. This is an examination in abstracto: a defect is hidden when it cannot be discovered by a normally attentive but elementary examination upon viewing or delivery. The reference person is a buyer with the same technical knowledge and skill as you, in the same circumstances (Ghent, 17 November 2022, T. Verz. 2023, issue 2, 215). For a private buyer, something can therefore be hidden, whereas a professional construction entrepreneur should have noticed that same defect.
You have already accepted the home — can you still complain?
One of the most important developments in recent cassation case law revolves around the moment of acceptance of the home. In a judgment of 6 January 2022, the Court put it sharply: the buyer who accepts the thing delivered can no longer invoke a lack of conforming delivery (Cass., 6 January 2022, case no. C.21.0165.N, RABG 2022, issue 7, 521).
What does that mean in practice? As long as you do not accept the home — typically: at the notarial deed or the actual taking of possession — you can invoke the obligation of delivery and visible defects. Once you accept, you close that door. From that moment, the only route that remains open is the warranty for hidden defects on the basis of Article 1641 of the old Civil Code. And that route is bound to a short deadline (see below).
Acceptance thus functions as a pivot point. The Court of Cassation confirmed that line in a judgment of 13 January 2023, this time in a consumer-sale context (Cass., 13 January 2023, case no. C.22.0135.N): even there, after the expiry of the warranty period, only the common-law regime of hidden defects applies, no longer that of conforming delivery.
This has practical consequences. If you suspect problems at the time of the notarial deed, have it recorded — if necessary with reservation — before you sign. Once you sign and receive the keys, you forfeit the possibility of invoking a non-conforming delivery.
What if you already suspected the problem yourself?
An important exception: you cannot invoke a hidden defect for problems you knew or should reasonably have known at the time of the purchase. This is called acceptance of risk.
The Brussels Court of Appeal, for example, ruled in a case in which buyers acquired a building despite the express mention in the compromise that there was no planning permit for the division into seven housing units. The court held that these buyers had committed "in full knowledge of the risk" and had taken it upon themselves (Brussels, 8 January 2021, JLMB 2021, issue 9, 388). No hidden defect, no error, no fraud: the problem was not a problem because it was known.
The same applied in a case in which a seller had sold land that was already known to be polluted. The buyer, himself not a layperson, had been given the possibility of having additional soil investigations carried out but had not done so. When additional pollution was established afterwards, the Mons Court of Appeal held that he could no longer invoke a hidden defect (Mons, 6 June 2018, JLMB 2020, issue 17, 772).
The practical lesson: if, as a seller, you know there is a problem, mention it expressly in the compromise. Not in a general way ("sold as is"), but specifically: name the problem. In this way, the acceptance of risk is demonstrable. General exoneration clauses have much less force (see below).
What can you demand: your money back or a price reduction?
When you succeed in demonstrating a hidden defect, you have — and you alone, as the buyer — the choice between two sanctions (Cass., 23 March 2017, case no. C.15.0232.F):
- The rescission of the sale: you return the property, the seller returns the price and the associated costs (notary fees, registration duties where applicable). In legal terms, this is called the actio redhibitoria.
- A price reduction: you keep the property, but recover part of the purchase price. The amount of the price reduction is typically determined on the basis of what it costs to remedy the defect (Mons, 19 November 2019, JLMB 2021, issue 9, 404). The actio aestimatoria, then.
The judge cannot take this choice away from you, and the seller cannot compel you to repair in kind if you do not wish it. You may also still change your choice during the procedure, unless you have expressly waived it.
An important nuance regarding the price reduction: you cannot commit abuse of right. If the works to remedy the defect are very limited but you nevertheless demand full rescission, the judge can qualify that as abuse of right. In a case in which buyers had carried out renovation works before the notarial deed and discovered a damp problem in the process, the Brussels court held that it would constitute abuse of right to demand full rescission (Trib. Brussels, 29 March 2019, TBO 2019, issue 6, 439).
Additional damages are possible when the seller knew or ought to have known the defect (Article 1645 of the old Civil Code). You can then obtain compensation for the entire damage: not only the price reduction or the restitution, but also additional costs such as temporary housing, removal costs or expertise costs. With a seller in bad faith, the possibilities are broad (Trib. Ghent, 8 November 2022, RW 2022-23, issue 32, 1275).
"Sold in the state in which it is" — are you then without rights?
In practically every sales contract for existing real estate there is a variant of the formula: "The property is sold in the state in which it is, with all visible and hidden defects." This is an exoneration clause for hidden defects. But the clause does not have the absolute force that many sellers attribute to it.
The principal rule: in B2C relationships (sale by a business to a consumer), such a clause is outright null on the basis of Article VI.83, 14° of the Code of Economic Law.
Between private individuals, the clause is in principle valid, but with an important exception: a seller in bad faith cannot rely on it. Whoever knew or ought to have known the defect cannot hide behind a general exoneration. The Brussels Court of Appeal put it concisely: the exoneration clause is only set aside in the event of bad faith, and that presupposes that the buyer demonstrates that the seller had knowledge of the concrete defect (Brussels, 5 February 2021, JT 2022, issue 6890, 152).
When is a seller deemed to know the defect?
With the specialised seller, a presumption of knowledge applies. The Court of Cassation clarified in an important judgment of 15 January 2021 that this presumption does not rest on every professional seller, but does rest on the manufacturer and on the specialised seller, whether professional or not (Cass., 15 January 2021, case no. C.20.0241.N). The judge looks at the degree of specialisation and the technical competences. A contractor who sells his own home typically falls under that regime.
With the self-builder, the situation is more nuanced. A do-it-yourselfer is not automatically regarded as a specialist. But the Court of Cassation held, in a judgment of 18 February 2019, that even a self-builder "must know" that certain technical standards must be respected — for example that a cellar must be watertight (Cass., 18 February 2019, case no. C.18.0346.N). Whoever deviates from those standards without consulting a professional can no longer invoke his ignorance to escape his liability.
A valid exoneration clause for a known defect presupposes that the defect is specifically mentioned in the contract. A general clause "all defects" does not suffice to cover a known problem; you must name the problem.
How much time do you have to react?
This is arguably the most treacherous aspect of the entire matter. Article 1648 of the old Civil Code provides that the action for hidden defects must be brought "within a short time, according to the nature of the redhibitory defects and the usages of the place where the sale was made". The law does not say how long that period is. The judge assesses this case by case.
In practice, six months is often the pivot point. Summoning four months after the discovery of the defect is generally accepted (Brussels, 26 November 2013); eight months without concrete action is generally too late (Mons, 5 June 2014, JLMB 2017, 20). But it is not a fixed rule. The judge takes into account the nature of the defect, the complexity of the factual investigation, the fact that you had to consult your legal expenses insurer, and so on.
The period runs from the moment you know or ought to know the defect, not from the purchase. If you discover dry rot two years after the purchase during renovation works, the short period only begins to run at that moment, provided the defect was indeed hidden.
The period can be suspended by serious negotiations. If, after the discovery of the defect, you enter into a dialogue with the seller — in writing, with concrete proposals — the period is suspended as long as those negotiations last (Liège, 22 September 2016, JLMB 2018, 346). But beware: a mere email does not suffice. The negotiations must be "serious" and the consultation must still offer a real prospect of an amicable solution.
The request for a judicial expert investigation can also have a suspensive effect (Ghent, 11 December 2020, TBO 2021, issue 1, 61), provided you simultaneously bring the matter before the court on the merits — if only with a provisional claim of one euro.
The cascade of sellers. What if you discover a defect and have meanwhile resold yourself? Until recently, the rule was that the period of your own warranty claim only began to run from the moment you were held liable by your own buyer (Cass., 25 June 2010). In a judgment of 23 June 2022, the Court of Cassation, however, nuanced that rule: if you already knew or ought to have known the defect while you were still the owner, the period already begins to run at that earlier moment (Cass., 23 June 2022, case no. C.20.0470.N). The reseller who waits too long to hold the original seller liable therefore risks that his own claim is time-barred before he is himself summoned.
No short period in the event of an express warranty. If the seller has expressly guaranteed the non-existence of a specific defect, the short period of Article 1648 of the old Civil Code does not apply (Trib. Walloon Brabant, 3 June 2015). You then fall back on the common-law limitation regime of ten years.
What if you are too late: other ways to hold the seller liable
Once the short time has expired, your possibilities are not necessarily exhausted. Three alternatives remain open.
Error and fraud (Articles 1109 and 1116 of the old Civil Code). If the seller concealed essential information or actively misled you, you can claim the nullity of the sale. Fraud requires a manoeuvre, but the concealment of an essential fact can in itself already constitute a manoeuvre. In an important judgment, the Antwerp Court of Appeal held that a seller who wrongly declared in the authentic deed that the land did not fall under the Forest Decree — while he knew that a reforestation obligation existed — committed incidental fraud (Antwerp, 14 July 2022, NJW 2022, issue 471, 844). The Hasselt court expressly confirmed that the same set of facts can, in addition to hidden defects, also be qualified as error or fraud (Trib. Hasselt, 1 April 2020, Limb.Rechtsl. 2020, issue 3, 253).
Precontractual liability (Articles 1382-1383 of the old Civil Code, since Book 6 of the Civil Code: Article 6.5). If the seller breached his precontractual duty to inform — for example by concealing an imminent construction project in the vicinity that will considerably affect the view (Trib. Antwerp, 17 November 2015, RW 2016-17, issue 17, 671) — you can claim damages on an extracontractual basis. This claim is only time-barred after five years.
Warranty against eviction (Article 1626 of the old Civil Code). For certain problems — typically a building infringement for which a restoration claim is pending — the warranty against eviction can constitute an alternative. The Court of Cassation has expressly confirmed that the absence of a planning permit can constitute a disturbance of right (Cass., 31 March 2017, TBBR 2018, issue 6, 323).
The choice between these legal figures is not a detail. Each path has its own conditions, burden of proof and deadlines. Choosing the legal qualification correctly — and including the right statement of facts in the summons — is essential to not lose your rights.
How do you prove a hidden defect?
The burden of proof lies entirely with you as the buyer. You must demonstrate that there is a defect, that it is serious enough, that it existed at the time of the purchase, and that it was hidden. In practice, a judicial expert investigation is often indispensable — but carrying out repairs yourself before the expertise can also be the most fatal mistake. We work out the proof strategy in our separate guide on proving a hidden defect: means of proof, judicial expert investigation, and the pitfall of repairing it yourself.
How Reius Lawyers can assist you
Hidden defects in real estate seem at first sight a well-delineated matter. In practice, it is one of the most complex domains of property law: the legal qualification, the deadlines, the burden of proof, the concourse with error, fraud, the obligation of delivery or eviction — each case requires a specific analysis.
Reius Lawyers assists buyers and sellers daily in such disputes. For the buyer, it begins with a quick assessment: do you still have time to act, and if so, on which legal ground are you strongest? For the seller conversely: how do you parry a claim, can you rely on the exoneration clause, and which means of defence are available?
Have you discovered a hidden defect in your home or are you yourself being held liable? Get in touch via info@reius.be or via our contact form. The sooner you mobilise us, the more room for manoeuvre we have — especially in cases where the short period of Article 1648 of the old Civil Code threatens to expire.