An estate agent can be liable if they act carelessly in providing their services and cause damage as a result. It makes a difference whether you are their client or the buyer who received information from the selling agent. An incorrect statement does not simply lead to compensation of the entire purchase price.
Buying agent or selling agent?
Your own buying agent must carry out the agreed guidance with due care. Examine which information they had to check, which risks they had to flag and which conditions were discussed with you. An estate agent is not automatically a building surveyor or civil-law notary, but may have to advise you to have further investigation carried out.
The selling agent works for the seller. Even so, in certain circumstances they may act unlawfully towards a buyer by providing incorrect or misleading information. The nature of the statement, the justified reliance on it and the circumstances of the transaction are taken into account.
Incorrect living area
A difference between the stated and the measured area first calls for a careful measurement report. Check which measurement method was used and which spaces were included. Usable living area (gebruiksoppervlakte wonen), other indoor space, building-related outdoor space and plot area are different concepts.
For a selling estate agent who was a member of the NVM (Dutch Association of Estate Agents), the Supreme Court attached significance to the mandatory measurement instruction and to the reliance a buyer may place on the stated area. That does not yet establish the extent of the damage. A calculation of ‘missing square metres times the average purchase price per square metre’ is not automatically the correct compensation.
Examine, for example, what the market value would have been with correct information, whether you would have negotiated differently and which alternative was actually available. A valuation may be needed. Keep the original brochure, advertisement, floor plans and correspondence before they are changed.
Other possible professional errors
- Incorrect information about permitted use, leasehold (erfpacht) or relevant restrictions.
- Failing to pass on a known defect or an important statement.
- Insufficient attention to an agreed financing condition.
- Failing to pass on a bid or an essential instruction in time.
- Failing to warn sufficiently that information has not been checked.
With a structural defect, the seller, the surveyor or other parties may also play a role. Their obligations are not the same. A claim against the estate agent requires its own substantiation of the agent’s conduct and its consequences.
Which documents do you need?
- The brokerage agreement and general terms and conditions.
- The advertisement, sales brochure, questionnaire and floor plans.
- The purchase agreement with its annexes and conditions.
- Messages about questions, warnings, bids and deadlines.
- A measurement report, valuation or other relevant expert investigation.
- Proof of additional costs and of your decision-making when buying.
Filing a complaint and recovering damages
An estate agent who is a member of a trade association may fall under an industry complaints or disciplinary scheme. Check the membership and the powers of the body concerned. A complaint does not automatically lead to compensation. In the meantime, make sure civil time limits for complaints and limitation are monitored.
A civil-law notary or mortgage adviser has their own tasks in the same transaction. A shortcoming of one cannot simply be attributed to the other. See also holding a notary liable.
Frequently asked questions
Can I hold the seller’s estate agent liable?
In certain circumstances you can, even without having engaged them yourself. You must substantiate which careless provision of information or conduct caused you damage.
Is a general disclaimer enough to exclude liability?
Not automatically. The content, context and specific statements must be assessed.
Should I have the property measured again straight away?
An independent and well-documented measurement report can be important. Agree the measurement method and costs in advance.
Source
Supreme Court 13 July 2018, ECLI:NL:HR:2018:1176 on living area and the measurement instruction.
Time limits, costs and your next step
Report the suspected error in good time and in concrete terms. A complaint and interrupting the limitation period are different acts. For claims for damages, a period of five years after actual awareness of the damage and of the liable person often applies, but special rules and other time limits may apply. Have the time limit for your own file checked.
Responsible lawyer: Onur Arslan. Contact us with a brief description and any urgent deadline. Discuss in advance the scope and costs of the investigation, possible expert costs and litigation risks. Recovery of all costs is not guaranteed.
See also the general professional liability guide for a step-by-step plan, a file checklist and an explanation of damage, causation and complaints procedures. Legal basis: Book 7 of the Civil Code (duty of care), Book 6 of the Civil Code (compensation and the duty to complain in time) and Book 3 of the Civil Code (limitation and interruption).
