Asbestos in a home: a hidden defect or not?

Factual situation

However, case law is not unanimous on this point.

In a recent judgment from February 2024 of the Ghent Court of Appeal, the judge stated that , in principle, a non-specialist buyer does not have the duty to be assisted by an expert, nor does he have the duty to subject the sold property to an expert's report in order to investigate the presence of asbestos. The court thereby supplements the judgment by describing the factual situation of the building work from which it is concluded that it was impossible to see the asbestos sheets on the outside of the timber frame structure of the house. These therefore became visible only when works were carried out to install new techniques. The judge stated that buyers on the viewing day could not be expected to take destructive action (within the limited time of the viewing day) on the interior or exterior walls to check for the presence of asbestos.

The judge in the Ghent Court of Appeal thus appears to take the factual circumstances into account here and seems to argue that his reasoning would have been different if it concerned a roof or corrugated asbestos sheets, particularly classic places where asbestos can be found.

The court adds that the buyers' particular attention to the presence of asbestos in the house, as well as the year of construction of the house, does not affect the hidden nature of the presence of the asbestos in the walls. For that reason, this judgment concludes that it is therefore indeed a hidden defect.

Nevertheless, there is also case law that takes a completely different view.

For example, reference can be made to the case law of the Brussels Enterprise Court, then the Commercial Court, which in 2015 already stated that a 35- to 40-year-old house can be expected to have asbestos present and that it therefore does not constitute a hidden defect (Kh. Brussels (Fr.) 23 March 2015, no A/13/02396, T.App. 2015, afl. 4, 34).

Thus, it all depends on the factual situation: could a normally diligent buyer expect that asbestos was present in that place in the house? This will then take into account the visibility, the location of the asbestos material, the age of the house...

Indemnity clauses

It should also be pointed out that at present, it is almost standard to use an indemnity clause (exoneration clause) in the notarial deed and the compromise. This basically deprives the buyer of the right to sue the seller for any hidden defects in the property.

In the February 2024 judgment discussed earlier, the court swept such indemnity clause off the table by stating that the exoneration clause of the compromise and notarial deed differed. According to the court, the text of the clause had no exoneratory value which meant the sellers were bound to indemnify.

The above judgment could thus have been different if a valid exoneration clause was included in the deed.

When a sale was concluded between private individuals, such an exoneration clause is only valid insofar as the seller is acting in good faith. A seller in bad faith, being: a seller who knew about the presence of asbestos but deliberately concealed it, cannot exonerate himself.

Of course, the question can be asked to what extent sellers who have lived in a property for years and years and have modified it several times or built it themselves may or may not be aware of the presence of asbestos. So this part will fall or stand with evidence

If the property is bought from a professional seller, he is deemed, by virtue of his professional capacity, to have been aware of the defect. The buyer thus does not have to prove it. It is then up to the professional seller to prove that he really could not have been aware.

The liability of the estate agent or asbestos expert

With the mandatory introduction of the asbestos certificate, one might think that it is still rare for a buyer to be unaware of the presence of asbestos in a property. Such certificates are a good indication, but do not always correspond to reality.

The question can also be asked to what extent the real estate agent or an asbestos expert should have noticed and/or mentioned the asbestos present.

In principle, the asbestos expert who made the attestation is liable for anything he should have identified within his so-called ‘best efforts obligations’. Thus, the expert should not break open walls or floors to look for any completely hidden asbestos material. Incidentally, this is also included in the certificate itself. In addition, experts also advise to carry out additional destructive testing in the relevant work zone at the start of works.

If asbestos is discovered in the house, which should have been noticed according to the normal effort commitment of the asbestos expert. Then complaint can be filed on the OVAM website. A liability action can also be filed through the court to claim compensation.

Real estate agents are obliged as part of their information obligation to provide a valid asbestos certificate if the property was built before 2001. The estate agent is not obliged to make the property asbestos-free or to carry out additional research.