18 June 2025
The sale or purchase of a property is a complex process involving legal elements.
While the seller and buyer focus on the paperwork, it can happen that something happens with the property. For example, damage may arise from a falling tree or a leak. It is essential to understand at what point the risk associated with the property transfers from the seller to the buyer. This article discusses the different phases of the sales process and who bears the risk for the property.
It is not entirely illogical that the risk for the property lies with the seller prior to the signing of the purchase agreement. The seller is the owner of the property and therefore bears all responsibilities regarding the real estate, including any damage or defects. If damage occurs to the property, it is up to the seller to (not) repair this damage.
The seller would be wise to repair any damage before the sale or to clearly communicate any issues to potential buyers during the sale process. This helps prevent legal disputes and liability at a later stage (see Phase 3).
After the purchase agreement is signed, the situation changes somewhat. The risk still lies with the seller, but additional obligations arise. The seller must report any incidents occurring between the signing and delivery of the property to the buyer. This could include burglary, water damage, or other unexpected events.
The seller is also obligated to remedy any defects that arise due to these incidents. A seller is required to deliver the property to the buyer in accordance with the agreements made in the purchase agreement. Typically, the purchase agreement stipulates that the seller is obliged to deliver the property in the condition it was in at the time of signing. If there has been a change in the condition of the property, the seller must restore it unless otherwise agreed upon by the parties.
From the moment the property is delivered to the buyer at the notary, the risk associated with the property transfers to the buyer. This means that from that point onward, the buyer assumes all responsibilities for the real estate. If damage occurs to the property, it is now up to the buyer to (not) repair this damage.
This main rule has several exceptions concerning hidden defects or non-conformity. The law provides that the seller is required to deliver a property that complies with the purchase agreement and possesses all characteristics necessary for normal use, as well as for special use if agreed upon. If there are defects in the property that could not be discovered by the buyer, this may lead to liability for the seller.
For more information on non-conformity in relation to the sale or purchase of a property, I refer to this article.
It is crucial for both sellers and buyers to be aware of their rights and obligations throughout the entire process of selling or buying a property. Legal disputes can arise if either party fails to meet their obligations. Sellers must realize that they are responsible for the property, in principle until delivery, while buyers must understand that they bear this responsibility from delivery onward.
Are you planning to buy or sell a property and want to know what your responsibilities are? Please feel free to contact me or one of the other specialists at GMW Advocaten.
