You finally bought your dream house, but soon the house turns out to be more of a nightmare. It turns out to stink of fish and frying smells in the new house. You want to undo the purchase as soon as possible. What does the judge think of this case?
A seller puts his house for sale on Funda. The house is located above a fish shop, but the seller puts the following text in the advertisement “absolutely no trouble from the shop below”. Smell nuisance from the underlying shop seems to be out of the question. An interested potential buyer decides to visit the house and indeed does not smell any fish smell or other unpleasant smells during the visit. Then some time later, a sales agreement is concluded between the seller and the buyer. However, when the buyer enters his new home he appears to notice a penetrating smell of fish and frying.
The buyer then asks the seller to take measures so that the buyer no longer experiences the serious odour nuisance. Initially the seller promises to cooperate, but if he fails to do so, the buyer’s patience quickly runs out. He calls in a company to look into what causes the odour nuisance. In the end, the investigation shows that the fans of the fish shop are responsible for moving the smell of fish to the buyer’s home. The buyer then decides that he wants to cancel the purchase and institutes summary proceedings (urgent procedure).
Judgement of the court
In principle, a buyer of a house can dissolve the purchase agreement if the house does not comply with the agreement. If a house does not comply with the agreement, this is also called non-conformity. What a seller has communicated about the property should also be taken into account. In short, if the seller has made it clear at the time of the sale that the house stank, the buyer cannot later dissolve the purchase agreement on the grounds of that smell. It follows from the law (Article 7:17 of the Dutch Civil Code) that the home possesses the properties required for normal use. This concept of normal use is, for example, also included in the NVM deed of sale.
In this case, the court ruled that it was plausible that there was some stench nuisance, but also that the stench was somewhat to be expected because the house was located above a fish shop. This was despite the fact that the seller had stated in the advertisement that there would be absolutely no nuisance. According to the court, it had not been sufficiently demonstrated that the stench was actually so serious that it impeded normal use of the house. Nor was it sufficiently clear that there were no ways to eliminate the stench. In short, the judge ’s opinion was that the stench did not justify the dissolution of the purchase agreement.
In itself, it is remarkable that the judge ignored the fact that the seller had advertised with “absolutely no nuisance from the shop below”. In my opinion, it can certainly be defended that the seller actually obliged himself with this statement to deliver a home without any (odor) nuisance from the fish shop underneath. This would be different if, for example, the buyer had been inconvenienced by the approach of customers. From an objective point of view, the seller does not necessarily have to experience such a nuisance and it is also up to the buyer to ascertain the situation to some extent. This case definitely shows that a judge will not allow a quick dissolution of a sales contract. As a buyer, it is always important to investigate extra carefully if the circumstances give (any) reason to do so and not to accept the seller’s words too quickly.
Have you bought a property that does not meet your expectations or are you, as a seller, dealing with a dissatisfied buyer? Please feel free to contact M2 Advocaten.
Lawyer Ginio Beij (firstname.lastname@example.org)