You Might Be Thinking…

“Isn’t it just 2 years for real estate?”
No. Under the Civil Code:

• § 2129(2): For hidden defects of buildings firmly connected to the ground (this includes houses as well as flats and their co-owned common parts), the court will not grant a defect claim if the buyer fails to notify the seller within 5 years of acquisition and the seller raises a timeliness objection.

• § 2129(3): If the buyer is a consumer and the defect appears within 2 years of transfer, it is presumed that the property was defective at the time of transfer. This is a burden-of-proof presumption, not a shortening of the 5-year period.

Clients Often Ask Me…

• Does the 5-year period apply to flats as well?

• What exactly does “appears within 2 years” mean for consumers?

• How quickly do I need to notify a defect?

• What remedies can I choose (repair, discount, withdrawal)?

• How are common parts of the building handled through the HOA (SVJ)?

Legal Framework in a Nutshell

• When the right arises (§ 2100): A defect existing at transfer creates buyer’s rights even if it appears later.

• Inspection and notification (§ 2104–2105): The buyer must inspect as soon as possible and notify defects.

• Choice of remedies (§ 2106–2107):

  • Material breach: repair/replacement, discount, or withdrawal.

  • Minor breach: repair or discount.

• Procedural limit (§ 2112): If the buyer fails to notify without undue delay after discovery, the court won’t uphold the claim if the seller objects.

• Real estate (§ 2129/2–3):

  • 5 years to claim hidden defects of houses/flats (including common parts).

  • 2 years – consumers: presumption that a defect existing within this time already existed at transfer.

Flats and Common Parts

For flats (units), the 5-year period covers both the unit itself and the shared parts of the building (roof, piping, insulation, façade, etc.). These claims are often exercised by the homeowners’ association (HOA/SVJ) on behalf of all owners. Buyers of flats are thus not disadvantaged – their rights to claim hidden defects are the same as with houses.

Step-by-Step Procedure

1. Document the defect immediately (photos, video, expert report).

2. Notify the seller in writing without undue delay.

3. State which remedy you choose (repair, discount, withdrawal).

4. If it concerns common parts, coordinate with the HOA/SVJ, which may assert the claim collectively.

5. Take legal action if the seller refuses – always consider the 5-year limit.

Risks and Common Mistakes

• Relying solely on the “2 years” → it is only a presumption, not a limitation.

• Waiting too long to notify → weakens or extinguishes your claim.

• Ignoring defects of common parts and failing to act through the HOA/SVJ.

• Choosing the wrong remedy (e.g., withdrawal instead of discount/repair) and complicating the dispute.

Lawyer’s Recommendation

✔ Include a 5-year liability clause for hidden defects in your purchase agreement.
✔ Always notify defects without delay, even if you think you have time.
✔ Use the 2-year consumer presumption to your advantage – it shifts the burden of proof.
✔ In flats, coordinate with the HOA/SVJ – their role is often key to success.

FAQ

Does the 5-year period apply to flats?
Yes, both to flats (units) and their common parts.

What does “2 years for consumers” mean?
It’s a presumption: if a defect appears within 2 years, it is deemed to have existed at transfer.

Do I have to notify defects immediately?
Yes, always without undue delay – otherwise you risk losing your rights.

Can I withdraw from the contract immediately?
Only in cases of a material breach (§ 2106). Otherwise, the primary remedies are repair or discount.