Absence of waterproof membrane (tätskikt), a hidden fault?

2020-09-07 i Fel i fastighet
FRÅGA
Hi, I'm looking for some advice in relation to a shower room we have in our basement. We bought our house in 2015. The house was advertised as having a new recently renovated basement. There was a shower, WC and sauna fitted. Although the work doesn't seem to be done to a very high standard, we were still lead to believe it was done properly. The WC and sauna appear to work fine, but the shower room was never used, and was mainly extra storage. However, after cleaning it out recently I noticed atleast 50% of the tiles on the wall are either cracked or miscoloured. I have started taking them off the wall, and there is no water proof membrane (tät skikt) behind them. The walls are clearly damp and therefore the shower room was not installed correctly. Does this fall under a hidden fault and are we entitled to claim compensation from the previous owners? Thanks.
SVAR

Hello,

thank you for trusting in Lawline to answer your question.

The purchase of property is regulated in Jordabalken (JB).

The short answer to your question is that the absence of a waterproof membrane is a hidden fault that could mean that you have the right to make a compensation claim to the previous owner.

What is a hidden fault?

When buying property (fast egendom) the seller is responsible for faults that are considered to be hidden for 10 years after the buyer was given access to the property (4 kapitlet 19 § och 19b § Jordabalken). Certain criteria must be met for the fault to be regarded as a hidden fault, mainly:

1.The fault must have been present at the time of the purchase. 2.The fault could not have been discovered during a thorough (ocular) inspection of the property. 3.The fault is not of the kind that could be expected from a building of that particular age, condition or construction.

Is the absence om a waterproof membrane (tätskikt) a hidden fault?

The lack of a waterproof membrane is typically something that is considered to be a hidden fault since it can´t be seen without the removal of the walls and/or floor.

You´re describing that the bathroom was built for not such a long time ago, therefore we can also exclude that the faulty construction was accepted building norms of that time.

Although the absence of a waterproof membrane is something that typically is considered as a hidden fault some circumstances may imply that it shouldn't be considered as such. The most critical is if the property was sold with a non- liability clause (friskrivningsklausul), that means that you abandon the rights to make a claim for compensation. Other circumstances that could make your case more complicated is if the circumstances in your case could have triggered an extended duty of inspection (utökad undersökningsplikt). Example of such could be if you were informed that the bathroom was done without a GVK certificate, if there was a smell of moisture damage etc.. If you had an extended duty of investigation it means that more responsibility will be put on you as the buyer for not discovering the fault.

Final advise

Most things that you describe in your case points towards that you will have the right to make a claim for compensation towards the previous owner. It is very important that you inform the previous owner about your compensation claim as soon as possible otherwise you may lose your right to compensation (4 kapitlet 19a § Jordabalken). The claim could consist of a price reduction but also to cover damages on the property related to the fault. If the previous owner won´t agree to your claim you should file a lawsuit to your district court (tingsrätten).

If something is difficult to understand due to the text not being written in my native language, please contact me in the comments and we will sort it out.

I hope that the answer to your question lived up to your expectations and that you will consider turning to Lawline again in the future.

Hälsningar,

My Öhman
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