A purchasing agent can be held liable if he or she has not acted with due care when providing advice. The Subdistrict Court recently ordered a buying agent to pay damages for failing to view the house and for failing to give sufficient warning of the risks of an ageing clause in the purchase contract.

The facts

The buyer bought a house from 1985 under the supervision of ZekerWonen, a company that mediates as a purchasing agent for buyers on the housing market. The purchase contract contained the following ageing clause:
“It is known to the buyer that the sold property dates from 1985. The age of the property means that the buyer cannot expect the property (for example, technical installations) to meet current standards. Contrary to Article 6.3 of this deed and Article 7:17 paragraphs 1 and 2 of the Civil Code, the total or partial lack of one or more characteristics of the immovable property for normal and special use and any other failure of the property to comply with the contract shall be at the expense and risk of the Purchaser.”

After the delivery of the house, the buyer found various defects in the house and ordered an architectural inspection. The structural survey estimated an amount of €3,250 to €4,950 for repair work that needed to be done in the short term to prevent further damage or consequential damage (or because it concerned safety aspects). An amount of € 4,900 to € 6,300 was estimated for remedial works to be carried out within five years. In addition, an amount of € 13,300 to € 19,800 was estimated for costs to improve the house, but for which there was no technical necessity.

The buyer had not taken into account additional costs for repairs and held the vendors of the house liable for the defects. The vendors rejected liability by invoking the ageing clause. The buyer then held the purchasing agent liable and requested payment of €11,250 (corresponding to the direct costs and the costs in time from the architectural report).

As the purchasing agent did not pay, the buyer started legal proceedings.
The buyer based his claim on the fact that the purchasing agent had failed to fulfil his obligations under the brokerage agreement. According to the buyer, the purchasing agent had not exercised the care of a good contractor when advising on the purchase of the property. For example, the buyer was wrongly not advised to have an architectural inspection carried out prior to the purchase, the purchasing agent failed to view the house himself and she did not sufficiently warn the buyer about the risks of the ageing clause in the agreement. If the purchasing agent had not violated her duty of care, the buyer would have made a lower offer on the house, because - with the purchase price she offered - she did not have the budget to carry out work in the house, or to have work carried out.

Judgment of the Subdistrict Court

Breach of duty of care
With regard to the failure to view the house and the insufficient warning of the risks of the ageing clause, the Subdistrict Court held that there was an infringement of the duty of care. As a contractor, ZekerWonen should have exercised the care of a good contractor. This means that ZekerWonen had to act as may be expected from a reasonably competent and reasonably acting professional in similar circumstances. What is meant here depends on the circumstances of the case, including the nature and content of the assignment, the position of the contractor and the nature and gravity of the interests involved. The duty of care is further defined by the General Consumer Conditions for Real Estate that apply to the work of ZekerWonen and the brochure in which it describes its services.

It would have been up to the purchasing agent to visit the house. Both according to the brochure and the General Conditions of Consumer Real Estate, the inspection of the house belonged to the duties of the purchasing agent, because this gives the purchasing agent the opportunity to form an opinion about (among other things) the structural quality of the house. By not visiting the house, the purchasing agent has not been able to form a proper opinion about the quality of the construction and any possible defects, although in this case there were special reasons to do so. The purchasing agent knew that the offer that he had made on behalf of the buyer was so high that the buyer did not have the budget to carry out necessary maintenance to the house. Moreover, the agent was aware prior to signing the purchase agreement that the sellers wanted to include an ageing clause, which would limit the buyer's options to seek redress from the sellers in the event of later discovery of defects. Under those circumstances, the purchasing agent could be expected to inspect the property prior to signing the purchase agreement in order to properly advise the buyer.

Damage
Next, the Subdistrict Court assessed whether the buyer had suffered damage as a result of the breach of the duty of care. When determining the damage, the starting point is that the buyer should be put in the situation as much as possible in which he would be if ZekerWonen had not violated its duty of care. For this purpose, a comparison must be made between the situation as it actually occurred - in which the real estate agent did not visit the house and did not ask special attention for the ageing clause - and the hypothetical situation that the agent would have done so.

In this regard the buyer argued that if the purchasing agent had visited the property, he would have offered a lower price for the property and the vendors would have agreed to that lower price. The buyer also made it plausible that the purchasing agent would have discovered a number of defects during a visit.

Conclusion
The Subdistrict Court considered it sufficiently plausible that if the purchasing agent had visited the property himself, this would have had some influence on the purchase price of the property and that it had been sufficiently established that the buyer had suffered damage. According to the Subdistrict Court, it was impossible to determine with any accuracy what the reduction in price would have been. Because the buyer had been in a situation where he had had to negotiate back from his earlier, already accepted offer, it was to be expected that the impact on the price would have been relatively limited. In that regard, the Subdistrict Court considered it unlikely that costs that would have to be incurred over a five-year period would have been deducted from the price by the sellers. Taking into account the bandwidth for immediately necessary costs of €3,250 to €4,950 in the architectural report, the Subdistrict Court awarded the buyer €3,250 in damages.

If you have questions or need help because you have discovered hidden defects and want to hold the estate agent or seller liable, please feel free to contact one of our lawyers without obligation. We will be happy to assist you.