Ask a lawyer on the topic of Contract law

Real estate purchase, warranty

July 28, 2011 | 25,00 EUR | answered by Bernhard Müller

Hello,

I would like to buy a small house (90m²).
We will take over accessories such as electric wall heaters and a kitchen.
During the inspection with the notary, we noticed an older water stain. It was then explained to us that the house without a basement was drained some time ago due to water ingress. It is now "absolutely" dry.

How can I protect myself in the notary contract that
1. the accessories work (e.g. the electric heating system with thermostat can prove its function over the winter months)
2. the house is really dry, i.e. properly renovated. (Protection as long as possible)

I now have the notary contract (probably standard quotes) for review.
With regard to liability, I quote:
"Furthermore, the buyer's rights due to a defect in the property, the building and also due to the movable objects sold together are excluded, regardless of whether such defects already exist today or arise until the transfer of possession. The risk of accidental loss and deterioration therefore passes immediately to the buyer.

However, the risk of fire, elemental and water damage remains with the seller until the transfer of possession. Until then, the seller must maintain the necessary care and the previous usability of the object of sale as well as existing property insurance.

The exclusion of rights also applies to all claims for damages, except for intent of the seller. The buyer therefore has no claims in particular for the size of the property and living space of the house, the absence of old legal easements, as well as the condition and usability of the land.

However, the seller assures that he is not aware of any significant defects that are not readily apparent during an inspection, old legal easements, setback transfers, or occupancy and rental obligations of the social housing requirement." End of quote.

What clause could I include in the notary contract to make it more "buyer-friendly".

Thank you.

Best regards.

Bernhard Müller

Dear inquirer,

To make the contract more buyer-friendly, the clause quoted by you from the contract should be removed and replaced with the following clause:

"The seller guarantees that the house is dry, the electric heating system with thermostat works, ... (list everything else the seller should guarantee). In the event that a defect in any of the aforementioned items should occur within ... (insert a number) years from the date of transfer of possession, the buyer is entitled to have it repaired at the seller's expense. To secure any claims for rectification of defects by the buyer, a portion of the purchase price in the amount of ... Euros will remain in a notary escrow account for the above-mentioned period. If a defect occurs within the aforementioned period, the amount required to rectify the defect shall be disbursed to the buyer from the escrow account upon presentation of the invoice.

The remaining amount on the escrow account after the aforementioned period has elapsed, plus interest, shall be disbursed to the seller."

However, there is a risk that the seller may no longer be willing to sell to you if you insist on replacing the clause quoted by you with a buyer-friendly provision. At the very least, the purchase price may be higher if the clause quoted by you is replaced with a buyer-friendly provision.

Best regards,

Bernhard Müller Attorney at Law