Short answer. A buyer of a house or flat in France who discovers after the sale a serious defect that predates it and was not apparent (water ingress, structural cracking, dry rot, termites, rising damp, a dangerous installation, a defect in the ground) has the hidden defects warranty of articles 1641 and following of the Civil Code: return of the price against return of the property, or a reduction in the price, plus damages if the seller knew of the defect. The period is two years from discovery of the defect, within a long stop of twenty years from the sale, and it is suspended by a court expert process (Cass., mixed chamber, 21 July 2023). The exclusion clause found in almost every deed protects a good faith private seller, but not a professional seller, nor one who knew of the defect, nor one who carried out the works himself, nor, for risks covered by a missing survey, a seller who failed to provide that survey. Everything turns on proof, therefore on the expert process, started before any repair.
Hidden defects are the commonest litigation in French property sales, and the worst prepared. The buyer finds the problem, has it repaired because the house has to be lived in, writes to the seller six months later, and learns that the clause in the deed exonerates him, that the evidence disappeared with the works, and that time is running. This article explains, from the buyer point of view, what is and is not a hidden defect, whom to sue, how to neutralise the exclusion clause, within what period, and what can be obtained. It also sets out what a seller who is sued can raise in answer.
1. Three conditions: hidden, pre existing, serious
Article 1641 of the Civil Code binds the seller to warrant against hidden defects in the thing sold which make it unfit for its intended use, or which so reduce that use that the buyer would not have bought it, or would have paid a lower price, had he known of them. Article 1642 excludes apparent defects which the buyer could have seen for himself. The defect must therefore be hidden, meaning not detectable by a normally attentive buyer during viewings, without expert inspection or dismantling; pre existing, at least in its cause; and serious, that is, rendering the property unfit for its purpose or seriously reducing its use. Damp visible on a wall during a viewing is apparent; dry rot behind a lining fitted six months before the sale is hidden. A shrinkage crack is a cosmetic defect; a crack passing through a wall and linked to ground movement is a defect.
Whether a defect is hidden is assessed by reference to the buyer: a building professional buying a house is held to a higher standard of vigilance, and a buyer who brought an architect or a tradesman to the viewings will find the defects that person should have spotted treated as apparent. It is also assessed against the documents handed over: what appears in the technical survey pack, the condominium rules or the minutes of general meetings is known to the buyer, whether or not he read them.
2. The exclusion clause and its four limits
Almost every deed of sale between private parties states that the buyer takes the property in the condition in which it stands, without warranty against hidden defects. Article 1643 of the Civil Code allows that clause, which protects a seller who did not know of the defect. It has four limits, and the buyer case almost always consists in showing that one of them applies.
The first is the seller being a professional: a property dealer, a developer or a property company are irrebuttably presumed to know the defects in what they sell, and the clause does not protect them. The case law treats as a professional the seller who himself carried out, or had carried out under his direction, the works that caused the problem: a private individual who renovated the house before selling it answers for the defects in his renovation. The second is bad faith: a seller who knew of the defect and said nothing cannot rely on the clause, and owes all the damages as well (article 1645); knowledge is proved by quotations, invoices, claims notified to insurers, minutes of general meetings, letters from neighbours or the managing agent, and by concealment works, a recent lining, fresh paint over a damp stain. The third is statutory: article L. 271-4 of the Construction and Housing Code requires the seller to provide a technical survey pack, and provides that where one of those documents is not valid at the date of the deed, the seller cannot exclude the corresponding hidden defects warranty. A seller who did not provide the termite report in a termite zone, or the asbestos survey, remains liable for those defects despite the clause. The fourth is fraudulent misrepresentation: intentional concealment of decisive information (article 1137 of the Civil Code) opens, independently of the warranty, a claim to annul the sale or for damages, and the clause is no obstacle to it.
3. Time limits: two years, twenty years, and the effect of the expert process
The claim must be brought within two years of discovery of the defect (article 1648 of the Civil Code). Discovery means knowledge of the defect in its cause and its extent, generally the date of the expert report, not the appearance of the first symptom. In four decisions of 21 July 2023 (notably no. 21-15.809) the mixed chamber of the Court of Cassation held that this period is a limitation period, capable of suspension, in particular by a court expert process ordered before any trial (article 2239 of the Civil Code), and that it is confined within the twenty year long stop of article 2232, running from the sale. A buyer who discovers a defect ten years after purchase can still sue; the seller remains exposed for twenty years.
Two other periods interfere. A claim against the builder or the company that carried out works falls under the decennial warranty of article 1792 of the Civil Code, ten years from acceptance, passed to the buyer with the property; where the defect comes from works less than ten years old, that route, which requires only damage compromising solidity or purpose, is often more favourable than the hidden defects warranty. And a claim against the surveyor or the estate agent falls under ordinary liability, five years from knowledge of the damage (article 2224). These periods are managed together, and an urgent application for a court expert, directed at every possible defendant, suspends them all.
4. Proof: repair nothing before it has been recorded
The mistake that ruins most cases is immediate repair. The plumber replaces the pipe, the bricklayer makes good the crack, and the proof of the defect, of when it arose and of its cause disappears with the rubble. The right course, from the moment of discovery, is the opposite: photograph and date, have a judicial officer record the position if the problem is visible, obtain a technical opinion from a professional, and write to the seller inviting him to a joint inspection on site, with his insurer if need be. If the seller does not come or disputes the position, article 145 of the Code of Civil Procedure allows a court expert to be appointed on an urgent application, in the presence of everyone who may be liable: seller, surveyor, estate agent, companies that carried out works, managing agent for the common parts.
The expert answers the questions that decide the case: what is the nature of the problem, what is its cause, did it exist before the sale, was it detectable by a lay buyer, what works did the seller carry out or have carried out, what is the cost of putting it right, what is the residual loss in value. The report then sets the ground for negotiation or judgment. Only urgent repairs, needed to prevent the position worsening, should be undertaken before the expert process, after the position has been recorded and the seller informed.
5. Whom to sue: seller, surveyor, agent, notary, contractors
The seller is the natural debtor of the warranty, but he is not alone. A surveyor who reported no termites, asbestos or lead where an inspection to the applicable standards would have found them is liable to the buyer, for the cost of the works or a share of it depending on the case; his compulsory insurance answers for payment. An estate agent who drafted an inaccurate advertisement, concealed information he knew of or neglected his duty to advise answers for his fault. The notary, bound to ensure the deed is effective, can be pursued where he completed the sale without a mandatory survey or without checking an easement or a planning position. Companies that carried out works within the last ten years answer under the decennial warranty, with their insurers, and the buyer has the benefit of damage to works insurance where it was taken out. Finally the buyer, subrogated to his seller rights, can sue the previous seller if the defect goes back to an earlier sale. A hidden defects case therefore often brings four or five parties before the court, and it is the court expert process that allows them to be assembled.
6. What can be obtained: rescission, price reduction, damages
Article 1644 of the Civil Code gives the buyer a choice: return the property and recover the price, or keep it and recover part of the price. Rescission suits defects that make the property uninhabitable or whose repair exceeds its value; it presupposes being able to return the property, which becomes complicated where there is a mortgage, and it carries reimbursement of the acquisition costs. A price reduction, chosen in the great majority of cases, corresponds to the cost of putting the property right, increased where appropriate by the residual loss in value. To either is added damages if the seller knew of the defect or is treated as a professional (article 1645): expert fees, rehousing during the works, lost rent, loss of enjoyment, distress. A good faith seller owes only the return of the price and reimbursement of the costs of the sale (article 1646).
7. From the seller side
A seller sued for hidden defects has serious defences, which he must raise from the expert stage. That the defect was apparent, established by the state of the property at the viewings, by the surveys handed over and by the standing of the buyer or those accompanying him. That it did not pre exist the sale, where the problem results from a lack of maintenance or from works the buyer carried out afterwards. That it is not serious, for cosmetic or minor problems. The exclusion clause, where he is a private seller, did not carry out the works and did not know of the defect. Limitation. And his own recourse against his seller, against the surveyor or against the contractors, whom he joins in the same proceedings. The seller legal expenses insurance, often forgotten, frequently covers the cost of defending.
8. Timetable, costs and orders of magnitude
A hidden defects case unfolds in three stages: recording the position and putting the seller on notice, in the weeks following discovery; the urgent application and the expert process, nine to eighteen months depending on complexity and the number of parties; then negotiation on the basis of the report, which produces a settlement in most cases, or proceedings on the merits, with judgment in twelve to eighteen months. The expert fees, advanced by the claimant, are borne by the losing party. In price reduction cases the sum recovered corresponds to the cost of the works as assessed by the expert, from a few thousand euros for localised water ingress to several hundred thousand for a structural defect or widespread dry rot, increased by damages where the seller acted in bad faith.
The firm acts for buyers and for sellers, from the first inspection to judgment, and coordinates the expert process with specialist assessors where the problem requires it. Defects affecting a new or recently renovated home follow a different regime, set out on the construction defects page, and defects in a property bought off plan on the off plan sales page.
Have you just found a serious defect in a property you bought recently? Have nothing repaired before the position has been recorded, and write to the seller now: time runs from discovery. A first conversation will establish whether the defect is hidden, whether the clause in the deed can be raised against you, and what the first step should be.
Frequently asked questions
What is the time limit for a hidden defects claim after buying a property in France?
Two years from discovery of the defect, generally the date of the expert report (article 1648 of the Civil Code). That limitation period is suspended by a court expert process and confined within a twenty year long stop running from the sale (Cass., mixed chamber, 21 July 2023, no. 21-15.809).
Does the sold as seen clause in the deed rule out any claim?
No, in four situations: a professional seller or one who carried out the works himself, a seller who knew of the defect, a missing mandatory survey for the risk in question (article L. 271-4 of the Construction and Housing Code), and fraudulent concealment. It protects only a good faith private seller.
What can the buyer obtain?
Return of the price against return of the property, or a reduction in the price equal to the cost of the works (article 1644 of the Civil Code), and, if the seller knew of the defect, all the damages: expert fees, rehousing, lost rent, loss of enjoyment (article 1645).
Is an expert process needed before suing?
Yes. A court expert appointed on an urgent application (article 145 of the Code of Civil Procedure) establishes the nature, the cause, the date of origin and the cost of the defect, brings all potentially liable parties together and suspends the two year period. Nothing should be repaired beforehand, save recorded urgency.
Can the surveyor or the estate agent be sued?
Yes. A surveyor who missed a defect detectable under the applicable standards, and an estate agent who circulated inaccurate information or failed in his duty to advise, are liable, within five years, and can be joined to the expert process alongside the seller.
Article written by Herve Guyader, member of the Paris Bar, doctor of law. This content is general information and does not replace legal advice.