Buying a home converted without a permit?
Don't delay in taking action
October 2022 – Have you bought a building that has been converted without the necessary permits? In this case, the building may have been delivered in accordance with the sales contract, but there is a hidden defect. The distinction between a non-conforming delivery and a delivery with a hidden defect is important because, in the case of a hidden defect, you must react more quickly... Much faster.
The facts
X sells a house to couple A. In the notarial deed, the seller confirms that for the alterations he made, either no permit was required or he had the necessary permits.
A few months after the sale, however, couple A learns that the rear of the building was built without a permit and that this situation must be "regularised". In other words, the back of the building must be demolished.
The couple turned to the judge, who ordered the seller X to pay damages. X appeals against the judgment.
Hidden defect or non-conforming delivery
According to the appeal judge, the back of the building built without a permit constituted a hidden defect. This poses a problem for buyers, as the rules on hidden defects are relatively strict. The Civil Code makes a distinction between delivery with a hidden defect and delivery that is not in conformity.
If the goods delivered do not conform to what was agreed - i.e. if they are not in conformity - the buyer must bring an action, but he has ten years to do so. This provision of the Civil Code essentially allows one to refuse delivery of a thing that one has not purchased. However, non-conforming delivery should not be confused with delivery with hidden defects.
In the case of latent defects, the buyer can also bring an action if these defects are serious, in the sense that they make the purchased good unfit for the use for which it was intended, or diminish this use to such an extent that the buyer would not have acquired it, or would have paid a lower price for it, if he had known about them.
If the judge finds that there is a latent defect, the seller must not only reimburse the purchase price, but may also have to pay damages, at least if he knew about the defects.
If the seller was unaware of the defects, he will have to reimburse the purchase price and any costs incurred by the purchase, but without additional damages.
An important difference with non-conforming delivery is that the buyer only has a short period of time to bring an action. The length of this period depends on the circumstances, such as the nature of the defect.
Combining the two actions?
It is not possible to bring both actions at the same time.
The Court of Cassation has already held in the past that when an action is brought for latent defects, it is not possible to bring an action for lack of conformity afterwards or simultaneously. Once delivery has been accepted, it is, according to the Court, only possible to bring an action for latent defects. This means that the buyer must react quickly.
No hidden defect of conformity
In the case under consideration, the judge of appeal had found that there was a latent defect. According to the judge, this had led to a non-conforming delivery.
But this reasoning does not hold. The Court of Cassation examined this reasoning and maintained its former view: when a judge finds that there is a latent defect, only an action for latent defects can be brought. An action for breach of the obligation to deliver a thing in conformity with the contract is then no longer possible.
