29 July 2024
It often occurs that an object does not correspond to what has been agreed. After the delivery of a property, for example, hidden defects may arise.
In such cases, it is important that you raise the issue in a timely manner. If you fail to complain in time, you forfeit the right to hold the other party accountable. In other words, you end up empty-handed if you complain too late. But what is considered timely and what is considered late?
The obligation to complain can be found in Articles 6:89 and 7:23 of the Dutch Civil Code. The purpose of these provisions is to protect the debtor against belated and difficult-to-verify complaints. According to these articles, the debtor may assume that the creditor promptly investigates whether the performance complies with the agreement. Consider, for example, the purchase of a house. If the house has defects, the seller may assume that the buyer promptly informs the seller about this so that the seller has the opportunity to defend himself.
The time limit for lodging a complaint starts running from the moment the buyer has discovered or should have discovered the defect. In case of a consumer purchase, the consumer has timely complained if he does so within 2 months. If it is not a consumer purchase, it cannot be definitively stated when a complaint is considered timely. The law does not provide a specific deadline.
To determine whether a complaint is timely, all relevant circumstances must be taken into account according to the Dutch Supreme Court. In particular, the potential disadvantage caused to the debtor by the delayed complaint is relevant, but also the expertise of the parties and the visibility of the deviation play a role, for example.
In 2007, a buyer purchased an apartment from a seller. In the years following 2007, the buyer experienced several leakages. These were temporarily fixed with sealant, but the periods between leakages became shorter. Ultimately, in 2019, the buyer instructed an expert to investigate the situation. The seller was informed about this. The expert concluded that the leakages were caused by defects in the construction of the apartment. The buyer then requested the seller to rectify the defects at his expense. The seller refused, leading to legal proceedings.
According to the District Court, the buyer complained too late, as the seriousness of the defects gave cause for an earlier complaint. Additionally, the District Court ruled that the seller was disadvantaged in his defence and recourse options due to the long delay. Therefore, the buyer’s claims were dismissed.
The buyer did not accept this decision and appealed. The Court of Appeal ‘s-Hertogenbosch ruled differently. According to the court, there was no breach of the obligation to complain because in 2019, as soon as there was reason to doubt the construction’s integrity, the buyer had an investigation conducted and informed the seller. Only after this investigation did the buyer become aware of the serious structural defects. The complaint period started running from that moment according to the court. Furthermore, the court ruled that the seller was not disadvantaged in his defence and recourse options.
Although the outcome was favourable for the buyer in this case, failing to complain (timely) can have significant consequences. There had already been multiple instances of leakage, raising questions about whether it could have been expected of the buyer to conduct an earlier investigation into the cause of the leakage. In other words, the outcome could have been different.
Are you facing defects or being held accountable for them? Feel free to contact us to discuss your options.
