Suppose you buy a property knowing there is a damp problem in the basement. The seller expressly mentioned it in the preliminary sales agreement, or you saw it yourself during the viewing. You sign anyway, because the price is attractive and you plan to carry out the works yourself. Two years later, after your renovation works, the problem turns out to be much more serious than you thought — foundations that are subsiding, dry rot that has spread beneath the floor. Can you still hold the seller liable?
In most cases: no. By signing with knowledge of the problem, you have legally accepted the risk. But as always in the law: there are nuances. In this article we explain where the boundary lies.
The principle: acceptance of risk excludes hidden defects
A hidden defect is by definition something you did not know at the time of the purchase. Once you are aware — through disclosure by the seller, through a statement in the preliminary sales agreement, or through your own observations — the problem loses its hidden character. Article 1642 of the old Civil Code says so expressly: the seller is not liable for visible defects that the buyer could have observed for themselves.
The Brussels Court of Appeal applied this principle sharply in a judgment of 8 January 2021. Buyers had signed the preliminary sales agreement of a building while having information about the lack of a planning permit for the division into seven residential units. The court held that they had "committed themselves with full knowledge of the risk" and that they had accepted that risk (Brussels, 8 January 2021, JLMB 2021, issue 9, 388). The absence of the permit constituted neither a mistake, nor fraud, nor a hidden defect.
The court's reasoning is logical. Anyone who knowingly and willingly buys a property with a known problem cannot subsequently complain about that problem. The price has taken that fact into account. The seller was entitled to assume that the buyer had accepted the risk.
The importance of an express mention
For the seller, this is the most important line of defence. But it only works when the information is demonstrably communicated. A conversation during the viewing in which the seller said "something" about a damp problem is difficult to prove afterwards. A written mention in the preliminary sales agreement, on the other hand, is almost unmistakable.
Practical examples of valid acceptance of risk:
- "The buyer declares having taken note of the presence of damp in the basement, as described in the attached technical report dated X."
- "The buyer accepts the absence of a valid planning permit for the extension at the rear of the property, and declares that no claim will be made against the seller in this respect."
- "The buyer is aware that the land is contaminated according to the exploratory soil survey dated Y, and expressly accepts this fact."
A general formula such as "sold in the condition in which it stands" is however not a valid acceptance of risk for a specific problem known to the seller. A specific mention is required for that purpose (see our spoke on the exoneration clause).
When does the acceptance of risk not hold?
Here it becomes interesting. Acceptance of risk has its limits. There are situations in which, despite a certain degree of prior knowledge, you can still assert rights.
If the actual problem turns out to be more serious than presented. Suppose the seller warned you of "a slight damp issue", while it later turns out that the foundations are structurally subsiding and the entire property needs to be underpinned. In that case, you have not accepted "the problem", but a much milder version of it. Acceptance does not extend to unknown aggravating factors.
The Mons Court of Appeal applied this principle in a case concerning soil contamination. The buyer had been informed of a known contamination on the land. But it subsequently turned out that additional fill soil had been brought in which itself contained further contamination. The court held that the warranty-limiting clause in the preliminary sales agreement did not extend to this new, undiscussed contamination (Mons, 6 June 2018, JLMB 2020, issue 17, 772). For what the parties had not discussed, the exoneration did not apply.
If the seller has expressly guaranteed that a particular aspect was in order. When the preliminary sales agreement states that "the seller guarantees the absence of dry rot", and this later proves incorrect, you can rely on that specific guarantee — independently of the general exoneration and without being bound by the short time limit of Article 1648 of the old Civil Code.
If there is fraud. This is crucial. Acceptance of risk presupposes that you were correctly informed. When the seller has actively misled you — for example by showing less serious figures or by withholding a report — the door opens to fraud (Article 1116 of the old Civil Code). In the case of fraud, your mistake need not even be excusable: you can rely on the lie, even if you might have discovered it yourself.
The case of the survey that was not carried out
In the Mons 2018 case, another important element came into play. The buyer, who was not himself a layperson, had obtained quotes for an additional soil survey but had not had it carried out. The court held that he had the possibility to build in additional certainty for himself, that he was regularly informed of the uncertainties, and that it was up to him "either to remove them by carrying out the investigations he considered appropriate, or to withdraw from the sale".
In other words: a buyer who has signals that more may be at stake, and who chooses not to investigate the matter further, is subject to an aggravated acceptance of risk. The court will find it difficult to allow him to complain about a problem whose signals he had received.
This is particularly relevant for asbestos, soil contamination and planning irregularities — areas where additional investigation is concretely possible.
What about incomplete information?
A grey area: the seller has reported something, but incompletely. He says that "there was damp at one point" but conceals that the problem returned after repair. Or he reports asbestos in the roof panels, but conceals asbestos hidden in the floor glue.
In such cases, the court typically holds that the acceptance of risk is limited to what was expressly reported. What was not discussed remains a hidden defect — provided of course that the other conditions are met (hidden, serious, existing at the time of the purchase).
Practical tips for the buyer
Read every clause in the preliminary sales agreement carefully. A mention of a specific defect is a warning: you are signing with acceptance of that problem. Decide consciously whether you wish to take the risk.
Negotiate a concrete price reduction. When a problem is known, this should have an impact on the price. A flawless property and a property with dry rot should not cost the same.
Carry out additional investigation when indications exist. When the seller gives signals that more may be at stake, take those signals seriously. An additional soil survey or an asbestos inventory costs less than the procedural costs of a later dispute.
Document what was said, and what was not. What the seller says orally is difficult to prove. Ask for written statements on points you find doubtful.
Practical tips for the seller
Be express and specific. A vague warning in the preliminary sales agreement offers less protection than a specific description of the problem.
Document what you have disclosed. A written declaration by the buyer that he has taken note of the technical report, dated and signed, is your best defence.
Do not conceal. The temptation to "forget" to mention certain aspects opens the door to fraud — and fraud is a heavier sanction than a mere warranty claim. You risk the nullity of the sale with full damages.
For the complete legal framework on hidden defects, consult our pillar on hidden defects in real estate.
Are you uncertain whether the acceptance of risk in your file is really watertight? A quick legal analysis can bring considerable clarity. Get in touch via info@reius.be.