The District Court of Oost-Brabant has had to address compensation that sellers must pay to buyers for delivering a property with a cracking roof with cracking roof panels. In doing so, the court applied a deduction of 40% for "new for old" and 10% in connection with the (possible) receipt of a subsidy.

Background to the case

In an earlier interim ruling, the court had already held that the cracking roof panels constituted a defect for which the seller was liable. In its final judgment of 20 September 2023, the focus was therefore primarily on quantifying the damage. The buyers had obtained quotations for roof repairs. According to experts, the proposed works were necessary to remedy the defect. The seller argued that the works were excessive and contended that less invasive measures would be sufficient. The court rejected this position. The court found that the quotations and expert reports provided a sufficiently reliable basis for assessing the damage. The court also took into account the fact that the expertise and experience of the experts involved had not been challenged.

Subsidy reduces the damage

An important point of contention was the question of whether possible sustainability grants should be taken into account. The seller argued that the work on the roof would also result in energy savings and sustainability improvements, which would entitle the buyers to claim grants. The court agreed with this position. Although the exact amount of the grant to which the buyers would be entitled could not be definitively established, the court estimated the available grant at 10% of the repair costs. This reduced the compensation immediately.

Significant deduction for 'new for old'

The most important aspect of the ruling concerns the application of the "new for old" principle. The court established that the buyers were entitled under the purchase agreement to a properly functioning roof from the 1980s. However, following completion of the repair works, they would have a completely modern roof that met the latest requirements for sustainability and energy efficiency. According to the court, the new roof would therefore be significantly more valuable than the original roof to which the buyers were entitled. The court also determined that energy savings and the increased value of the property should be taken into account when calculating damages. The court therefore rejected the buyers' argument that no "new for old" deduction should be applied because the repair was solely intended to remedy the defect. In the absence of precise data, the court estimated the increase in property value, energy savings and the benefit of the new roof combined at no less than 40% of the repair costs. This resulted in a substantial reduction in the final compensation awarded.

The court ultimately arrived at the following calculation:

• repair costs: € 38,770
• Subsidy deduction: 10%
• deduction new-for-old / energy saving / value increase: 40%

The net result was compensation of €19,385. Additionally, the court awarded approximately €8,500 in expert costs.

No offset of general property value appreciation

The seller further argued that the property had increased in value since purchase and that the buyers had therefore suffered no actual damage. The court rejected this defence. According to the court, a general rise in property prices is separate from the roof defect and therefore need not be offset against the compensation.

No compensation for therapy costs

The buyers also claimed compensation for the costs of psychological treatment or therapy due to prolonged noise disturbance and protracted proceedings. The court rejected this claim. According to the court, it was not sufficiently established that this treatment had become necessary as a result of the roof defect. Therefore, the costs were considered too remote a consequence of the defect.

Read the full ruling here.

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For questions about cracking roof panels, hidden defects or purchase agreements, you can contact me at jipvanvlokhoven@lawandpepper.com, or schedule an appointment at our office in Eindhoven. Want to stay updated on this topic? Follow the LinkedIn page of Law&Pepper Advocaten.