Age clause

Sometimes a home is sold with an age clause. This clause protects the sellers when the home is sold from liability for hidden defects in the home due to its age. These defects were not previously known to the sellers at the time of the sale.

Age clause in the sales contract

The clause is not part of the standard purchase agreement when buying a home. However, the sales broker should communicate on time, often also already online, that the home is being sold with this clause. The clause will be added to the standard purchase agreement in that case. By signing such a sales contract, you, as a buyer, indicate that you accept the risk of defects resulting from the age of the home.

Regular use of the property

A seller is obligated to deliver the sold home in such a way as to guarantee "regular use" by the buyers. Therefore, sellers are generally liable if issues surrounding the home prevent this regular use. However, an age clause significantly reduces this liability. This is explained in a contract article such as this one:

"The buyer is aware that the house is about (...) years old, which means that the demands that may be made on building quality are (considerably) lower than for new houses. Contrary to Article 6.3 of this deed of sale, defects (impeding normal use) resulting from the age of the dwelling are at the buyer's risk."

When buying a home with an age clause, it is advisable always to have a building inspection performed to fulfill your obligation to investigate.

Negotiating the age clause

We mostly see the clause in homes that are over 100 years old. However, the clause is sometimes used when selling relatively "younger" homes from the 1970s and 1980s. The clause refers to the lower construction quality of these "older homes" than new homes. It then becomes easy for sellers to defend themselves against claims by buyers regarding defects. In this respect, the age clause is also part of negotiating the home purchase. If the selling broker insists that the clause be included in the purchase agreement, then negotiations are possible on exactly how the clause will be worded.

The wording of an age clause

Discussion can arise between buyers and sellers about who is liable for a particular (age-related) defect if the age clause is not precisely worded. For example, it may need to be clarified whether the clause also covers a recent extension or dormer and whether or not it covers all items.  

In the event of a lawsuit, a judge may interpret the age clause differently. A generic age clause would initially seem to work in the seller's favor. Such a clause then seems all-encompassing at first glance. Yet it can also be argued that the more specific the aging clause is, the more the seller is covered. You can think about the specification of the age clause about, for example, construction parts, pipes, or vermin. This way, it is clear which defects are covered by the age clause and which are not. Also, note the reasonableness of the specification that it does have to do with age. For example, if all the electrics had been replaced 5 years ago, it would be odd for this to be part of an age clause.

Your buying agent can advise you on the implications of a specific wording of the age clause and negotiate a wording that works out better for you as the buyer.