Advice on Asbestos in Purchase Contracts | Legal Aid

Questioner

Dear, We bought a new house and the purchase contract has been signed. We have a conflict with the selling party because asbestos was discovered after signing the purchase contract. It concerns non-bonded asbestos of a very harmful type (amosite around the central heating pipe in the crawl space). The sales questionnaire stated that there was no asbestos in the house. During the viewings, the real estate agent did not know where the crawl hatch was located. So we did not have the opportunity to see for ourselves whether there was a suspicion of asbestos. The residents claim high and low that they did not know that there could possibly be asbestos. That seems unlikely to us because 2 years ago the floor from the crawl space was insulated by a company. During the building inspection that we had carried out 1 day after signing the purchase contract (so within 3 days' reflection period) - when it was already known where the crawl space hatch was located -, it was clear to the building inspector within 1 second that there was possibly asbestos. And also such that he was not allowed to enter the crawl space to inspect further. We then had a sample sent and it turned out that it was non-bonded amosite (a harmful type of asbestos). The result lasted a few days, so now it is no longer within a 3-day reflection period. The selling party then had an asbestos inventory carried out. The result is that the asbestos is also spread in the sand of the crawl space and poses a serious health risk (risk class 3) and that the crawl space may no longer be entered by third parties. This means that the house is actually unusable, because something will inevitably have to be done to the crawl space in the coming years. They then also had a quote made to have asbestos removed by a certified company. The total costs for this are €8,000. The selling party does not want the asbestos removed. We are of the opinion that the selling party should bear these costs (or at least share the costs). This is because there is a hidden defect (the residents could have had a reasonable suspicion that there was asbestos - certainly after having the floor insulated). Please advice Thank you in advance! Kind regards,

Lawyer

Have you not included a suspensive condition regarding the building inspection?

Questioner

Yes, we did include a suspensive condition regarding a building inspection. Sellers also want to suspend, but we actually just want to buy the house. We conducted the negotiations (and price) based on information that there was no asbestos present (it was also stated as such in the questionnaire). That fact plus the fact that the floor had been insulated by an official company 2 years ago, gave us sufficient reason to assume that the selling party should at least be able to suspect that there could be asbestos present. If the questionnaire clearly states that there is no asbestos present, and the selling agent is also unaware of the location of the crawl space, then we believe that we have reasonably fulfilled our duty of investigation (to the extent that this was possible at that time). The suspicion of asbestos came to light after signing the purchase contract - but within three days of reflection. The conclusion that it was non-bonded asbestos came a week later. In hindsight, we should of course have had the building inspection carried out before signing the purchase contract, but purchasing agents are very 'special' in that respect. (in other words: not much use to you either). We now almost have the idea that we should not have had the building inspection carried out, because then it would really have been a hidden defect (and we could have recovered the costs of removal from the sellers) at the moment that we had opened the crawl hatch ourselves after the transfer. Now it falls between two stools. In our opinion, the sellers are even using it to avoid selling (they do want to cancel), because - as they indicate - they may have sold the house a little too cheaply in their opinion (even now that the market is picking up again). In summary: we would like to buy the house (and therefore not dissolve it), but we do believe that the selling party should pay - at least in part - for the costs of the asbestos removal. What are our options?

Lawyer

There are several conceivable solutions, but I would first point out to the other party that in the event of termination of the agreement, they are now obliged to fully communicate everything to new interested parties, which will significantly reduce the price. The question is whether the other party is not simply bluffing. You are in a strong position. I regularly conduct such negotiations, feel free to contact me without obligation.

Lawyer

Given the seller's statement in the questionnaire about the absence of asbestos, it is correct that the sellers did not comply with their duty to provide information. You were therefore entitled to rely on the absence of asbestos. Now that you still want to buy the house and the seller would probably benefit from the dissolution, I do not think dissolution is desirable. It is best to purchase the house and claim compensation after delivery, in any case consisting of the costs of asbestos removal. It is important to inform the sellers of the asbestos in writing (by registered mail) as soon as possible and to hold them liable. I have extensive experience with cases concerning non-conformity due to asbestos. I refer for a similar case to a ruling in a procedure that I conducted http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBARN:2011:BU3010 If you wish, you can contact me for further advice.

Lawyer

I advise against the above procedure (at least to start with). Furthermore, I refer you to our email exchange.

Lawyer

As you can see in the above reactions of colleagues, there are several options conceivable and both are correct. My experience shows that a combination is possible and leads to the best result. This means that it is best to negotiate with the statement that if you cannot reach an agreement, it will eventually end up in a procedure that will only cost the seller money and that a mutual settlement is therefore best. If this does not work, you can take legal action to claim compensation. If you wish, I can assist you in the negotiations and in the procedure because I think you have a strong case.