The District Court Zeeland-West-Brabant has ruled that sellers are liable for serious noise nuisance caused by a defective roof structure. According to the court, the noise nuisance prevented normal use of the property, which constituted non-conformity. The sellers' invocation of an age exemption clause failed.

What happened?

The purchaser bought a property in late 2020 for €220,000. During the viewing, the selling agent had mentioned that the roof "could crack from the wind". However, in the questionnaire accompanying the purchase agreement, the sellers denied that there had been any defects in the roof structure, such as cracking roof elements. After delivery, the purchaser experienced loud popping noises coming from the roof. The purchaser held the sellers liable and had an investigation carried out by an engineering firm.

That investigation revealed that during a measurement period of one week, the property produced no fewer than 66 peak noise events of 50 to 60 dB(A), with peaks approaching 70 dB(A). According to the engineering firm, the noise nuisance was caused by the roof panels not having been installed in accordance with the manufacturer's processing instructions. The cause therefore lay in a structural defect in the roof. Additionally, the engineering firm concluded that the solar panels had no impact on the level of noise nuisance. The repair costs were estimated at approximately €12,000.

Defence of the sellers

The sellers argued that there was no defect preventing normal use of the property. According to them, the noises were incidental and, moreover, typical of this type of building. They also pointed out that during the viewing they had mentioned that the roof could crack, and that the purchase agreement included an age-related clause. Furthermore, they maintained that the buyer should have conducted additional investigations. To support their position, the sellers engaged an adviser. This adviser stated that there was no structural problem and that the property could be occupied normally.

Court ruling

The court rejected the sellers' defence. According to the court, the engineering reports demonstrated clearly how the investigation had been carried out and why there was a structural defect. The court also saw no reason to doubt the noise measurements. The fact that the sellers had failed to substantiate their criticism with sufficient specificity was relevant here. The court then ruled that the noise disturbance prevented normal use of the property. It was significant that the maximum permissible noise levels under the *Activiteitenbesluit* had been exceeded no fewer than 66 times in a single week, including during evening and night hours. According to the court, this meant the noises were not ones a buyer had to accept as normal domestic sounds. Moreover, the court established that the defect had already existed at the time of transfer of ownership. The problem stemmed from the defective roof structure itself. The sellers' testimony that they had always heard the noises confirmed this finding.

Age limitation clause provides no full protection

In the purchase agreement, an age clause had been included stating that the property was more than 31 years old and that the sellers could not guarantee that no defects linked to the age of the property were present. Nevertheless, the court concluded that there was non-conformity. The decisive factor was that the defect impaired the normal use of the property and moreover was not apparent to the buyer. This ruling confirms that an age clause does not automatically protect a seller from liability for serious hidden defects.

Compensation

The court ordered the sellers to pay jointly and severally EUR 11,797.50 in repair costs. In addition, they were required to reimburse investigation costs of EUR 1,775.30. The claimed out-of-court collection costs were rejected. The court also dismissed the defence that the buyer had increased the damage themselves by installing solar panels. According to the court, the buyer could not reasonably be expected to delay the installation of solar panels while the roof dispute was being resolved.

Read the full judgment here.

Contact a specialist?

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.