You Might Be Thinking…

“If I have the right to a discount or repair, the court will automatically grant it.”
Unfortunately, no. With hidden defects in real estate, the key is what you can prove and when you reported it.

Clients Often Ask Me…

• How do I document defects so they stand up in court?

• How quickly do I need to notify the seller?

• When is an expert report necessary?

• If I’m a consumer, is the 2-year presumption enough?

• How does the court handle evidence?

Legal Framework in Brief

• § 2100 Civil Code: Defects existing at the time of transfer create buyer’s rights, even if they appear later.

• § 2112 Civil Code: Defects must be reported without undue delay → otherwise, the court won’t uphold the claim if the seller objects.

• § 2129(2) Civil Code: Hidden defects of buildings – maximum 5 years to notify.

• § 2129(3) Civil Code: Consumers → if a defect appears within 2 years, it is presumed to have existed at transfer.

• Burden of proof: Whoever asserts must prove. For consumers, the burden shifts to the seller for defects appearing within 2 years.

Litigation Strategy Step by Step

1. Documentation

• Photos, videos, measurements.

• Ideally taken at different times.

• Secure witnesses (neighbor, construction technician).

2. Written Notice

• Notify the seller by email and registered mail.

• Describe the defect, when it appeared, and what remedy you choose.

• Keep proof of delivery.

3. Expert Report

• Commission a building expert’s report in time.

• Issues such as damp, structural defects, or insulation are nearly impossible to prove without an expert.

4. Pre-Litigation Phase

• Negotiate, but don’t miss deadlines.

• A formal pre-action notice pays off – courts will award costs.

5. Court Proceedings

• The lawsuit must clearly state the defects, timelines, and the chosen remedy (e.g., a €10,000 discount).

• Expect the court to order its own expert examination.

• Provide proof of timely notification – without it, the claim collapses.

Risks and Common Mistakes

• Late notification → claim is rejected.

• Relying on “oral agreements” → not admissible.

• Waiting too long → after 5 years, the claim is lost.

• No expert report → buyer’s word against seller’s.

• Wrong choice of remedy (§ 2106–2107) → weakens the lawsuit.

Evidence Checklist for Buyers

✔ Photo documentation (ideally from the start of occupancy).
✔ Written notification of defect to seller.
✔ Expert report (construction technician / court expert).
✔ Contract + handover protocol.
✔ Witness statements (neighbor, tradesman).
✔ Email correspondence with seller.

Lawyer’s Recommendation

✔ Always notify defects in writing and in time.
✔ Invest in an expert report – it can decide the entire case.
✔ Consumers have a 2-year presumption advantage, but must still notify defects.
✔ For flats, involve the HOA – collective action often makes the difference.

FAQ

Do I have 5 years, so can I wait?
No, 5 years is only the maximum. You must notify immediately after discovery.

Are phone photos enough?
At first, yes – but for court, an expert report is usually essential.

Can I withdraw from the contract right away?
Only in case of a material breach. Otherwise, remedies are repair or discount.

How often do buyers win in court?
With timely notifications and strong evidence, success is realistic. Without evidence – almost impossible.