Not every problem with a purchased property makes the seller liable. It is a misconception that many buyers have to come to terms with after a disappointing discovery: even when something is clearly wrong, the problem must meet strict conditions to qualify as a hidden defect in the legal sense. One of them is the degree of seriousness. In this article, we explain how the law and case law define that threshold.
What does the law say?
Article 1641 of the old Belgian Civil Code defines a hidden defect as a defect that renders the item "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 purchased the item, or would have paid a lower price".
Two elements stand out. First: the law sets a fairly high threshold. It is not enough that there is an imperfection — the use must be impaired "in a significant way". Second: the law introduces a subjective element. The question is whether you, had you been aware, would not have bought the property or would not have bought it at that price. This is a factual assessment in which the judge must put themselves in your shoes.
The intrinsic criterion
The classic starting point is that the defect must intrinsically affect the item. A loose door handle, a small crack in a tile, paintwork peeling here and there — these are not hidden defects in the legal sense. The property remains usable as a residence.
Things are different with structural problems: a foundation that is subsiding, a roof that systematically leaks due to a construction defect, a foundation that was never adequately waterproofed, or the presence of dry rot affecting the beam structures. Here, the item itself — in its essence — is affected.
The functional criterion: broader than one might think
The Court of Cassation has broadened the scope of Article 1641 of the old Civil Code by accepting, alongside the intrinsic criterion, a functional criterion. A defect may also exist when the item is not necessarily physically impaired, but is unfit for the specific use the buyer intended — provided the seller was aware of that use.
A telling example: a building that is legally declared unfit for habitation can constitute a hidden defect, even if the building is still physically standing. The impairment lies not in the stones themselves, but in the fact that the property can no longer serve its intended purpose (Brussels, 11 June 2020, RW 2022-23, issue 9, 343).
Another example: a plot of land on which building is no longer permitted as anticipated — for instance because the subdivision permit has expired — may under certain circumstances constitute a hidden defect, even though the land itself is perfectly sound. What matters is the functional use.
The crucial Cassation case law: economic loss alone is not enough
An important judgment of the Court of Cassation of 9 May 2016 dispelled a common misunderstanding: a mere impairment of economic value, without any actual reduction in use, does not constitute a hidden defect (Cass., 9 May 2016, AR C.14.0404.N).
What does that mean in practice? Suppose you buy a house for EUR 350,000. A year later, it turns out that a nearby industrial zone is to be expanded, causing the market value of your property to drop by EUR 20,000. That is not a hidden defect of the property — the house itself functions perfectly. It is an external circumstance affecting the value, not a defect that makes the item unfit for use.
The same applies to matters such as an unfavourable urban planning development in the surroundings, a changing traffic situation, or a shifting neighbourhood. All annoying, but none constitute a hidden defect within the meaning of Article 1641 of the old Civil Code.
How long must the reduction in use last?
A frequently asked question: must the defect render the property permanently unusable? The answer is no. Case law accepts that a temporary but substantial unusability can suffice. A roof that leaks heavily during winter and requires works, a heating system that fails completely and cannot be quickly repaired — these can perfectly well fall under Article 1641 of the old Civil Code.
But very brief loss of use or easily repairable issues fall outside its scope. A blocked drain that can be fixed with an hour's work is not a hidden defect. The question is always: does this significantly impair use, and is repair difficult or costly?
Examples from case law
Recognised as a hidden defect:
- Dry rot in the beam structures, discovered during renovation works seven years after the purchase. The court held that the short time limit only began running at the moment of discovery and accepted the claim (Antwerp Court, 16 February 2016).
- Asbestos in the subsoil of a plot, with an associated remediation obligation. The Commercial Court of Dendermonde held that the use restrictions arising from the remediation obligation made the defect sufficiently serious (Comm. Ct. Dendermonde, 12 September 2013, RW 2016-17, issue 18, 714).
- A damp problem that affected the health of the occupants to the point that they had to temporarily rent alternative accommodation (Liège, 11 February 2013, JLMB 2013, 2093).
Not a hidden defect:
- A slight damp problem in a bathroom located in a cellar without natural ventilation. According to the same Liège judgment, any reasonably attentive buyer should understand that such a space would in any case be damp — no hidden character, no defect within the meaning of the law.
- The presence of asbestos in a building 35 to 45 years old. The Commercial Court of Brussels held that, prior to the introduction of the asbestos certificate, this did not constitute a "substantial and serious" defect rendering the property unfit (Comm. Ct. Brussels, 23 March 2015).
How is the threshold assessed?
The trial judge has sovereign discretion in assessing whether a defect is sufficiently serious. But the test is applied in concreto, with attention to:
- The nature of the property. A new-build may be measured against stricter standards than a centuries-old building.
- The price of the property. A defect that would be acceptable in a budget property may be unacceptable in the luxury segment.
- The use the buyer had in mind. A damp problem in a garden shed is something different from the same problem in a main residence.
- The cost of repair in relation to the purchase price. A repair of EUR 5,000 on a property of EUR 400,000 rarely lifts the threshold above that of a hidden defect; a repair of EUR 80,000 on the same property almost certainly will.
The cost of repair as a benchmark
When you are unsure whether your problem is serious enough, a useful first question is: how much does the repair cost? If it is a fraction of the purchase price (for example, less than 1%), it is highly unlikely that the judge will consider it grounds for rescinding the sale. If the repair amounts to a significant percentage of the price (5%, 10% or more), the chances are greater that you will qualify for a price reduction or, in extreme cases, for rescission of the sale.
For a complete overview of your rights as a buyer and the possible sanctions, see our pillar article on hidden defects when buying a house.
Unsure whether your problem carries enough legal weight? A quick initial analysis can avoid a great deal of unnecessary litigation costs. Contact us at info@reius.be.