Liability after home purchase: your rights

Questioner

We bought an upstairs apartment over a year ago. It has a balcony on the roof of the extension/conservatory of the downstairs apartment. The construction layer of the roof of this extension/conservatory appears to be rotten and the balcony is therefore unusable. This came to light after the sale. We have held the previous owner of the upstairs apartment liable for repair costs due to the inability to use the balcony. He does not respond and refers to the VvE that once had the roof repaired. The previous owner of the upstairs apartment and that of the downstairs apartment were joint members of the VvE. What now? The previous owner knew or could have known of the defect, according to the roofer at the time. However, he denies this. Can we still hold the previous owner liable for a hidden defect or should we hold the owner of the ground floor apartment liable? Or should we submit this to the VvE of which we are now a member (and even chairman) to repair this together with the owner of the ground floor apartment? In other words, who will bear the costs of the repair, since part of what has been delivered (the home) cannot be used properly? Are we obliged to also repair the roof of the extension/conservatory of the ground floor apartment if we choose not to place our balcony on this roof? Please give your legal opinion!

Lawyer

This concerns two issues: 1. the possible liability of the seller, and 2. the question of whether the roof belongs to the common property of the divided property. As for the possible liability of the seller, this depends on what he has guaranteed in the purchase agreement. If a standard NVM or VBO model has been used, then the seller is only liable if it is a defect that was not visible to you but of which the seller was aware. In that case, it is up to you to prove this. Whether the repair is the property of the VvE or yourself depends on the deed of division. Is the extension of the downstairs neighbors on the division drawing? If so, does the deed state that the roof of the extension is common? In that case, it is the VvE that must take care of the repairs. If your balcony is also indicated on the division drawing, you must maintain this balcony. If you do not want this, the deed of division must be amended.

Questioner

Thanks for your response. The balcony/roof of the conservatory is not explicitly mentioned in the deed of division. We have assumed that the roof boarding is covered by the VvE but the joist layer below it is not. We have made that assumption because we logically cannot investigate the condition of the joist layer below the roof boarding but can respond and act on a report of a leak in the roof. The problem has been known to the downstairs neighbours for a long time, but the previous owner of our house did not want to do anything about it, except renew the roof boarding. And the then chairman of the VvE (the downstairs neighbour in question) agreed to that. So also a matter of overdue maintenance.

Lawyer

In the various model regulations of division, structural parts and roofs are considered common, finishing layers in private areas are private. I assume that your balcony is on the division drawing (with thick black lines as part of your private area), in which case the finishing layer (the walkable surface) is private. The seller was apparently aware of overdue maintenance, which does not necessarily mean that there is a defect that he should have reported. What was reported about the state of maintenance of the roof is still important. Did you receive the questionnaire completed by the seller? If the seller indicated that the state of maintenance was good, there may still be a possibility to address him about this, depending on several factors (for example, a possible age clause in the purchase agreement).

Questioner

Thanks for your response. We're going to see how the downstairs neighbor is doing. That house is also being sold now, which is why all this is happening now. But in the summer we would like to go out onto our balcony of course. So we need to get going. Thanks again for the explanation.