Hidden defects warranty, seller’s fraud, liability of surveyors and estate agents, ten-year structural liability: acting after a defect is discovered in a French property.
You are facing:
- a serious defect discovered after buying your French property
- a seller hiding behind the exclusion of warranty clause
- an incorrect or incomplete technical survey
- defects covered by the ten-year structural liability
- a warranty claim brought against you as seller
Discovering after completion a water infiltration, a beetle-ridden roof structure, a structural crack or a seriously non-compliant electrical installation turns a purchase into litigation. The French Civil Code gives the buyer a hidden defects warranty (Articles 1641 et seq.), provided he acts within two years of discovering the defect (Article 1648). Other grounds exist: fraud, non-conforming delivery, surveyor’s liability, ten-year structural liability.
The firm acts for buyers, French and foreign, and for sellers who are sued.
The risk: an exclusion clause, an expired time limit or the wrong defendant
Almost every deed of sale between private individuals contains a clause excluding the hidden defects warranty. It is effective, unless the seller knew of the defect or is a property professional. Proving that knowledge is the heart of the case: concealment works, inaccurate statements, earlier insurance claims, witness evidence.
The second risk is time: two years from discovery for the hidden defects warranty, five years for fraud, ten years from acceptance of the works for the structural liability of Article 1792. Choosing the wrong ground or the wrong defendant, seller, surveyor, builder or structural damage insurer, loses time that cannot be recovered.
Have you just discovered a serious defect? A first conversation sets the right legal ground and preserves the time limits.
The legal solution: establishing the defect, proving it pre-dated the sale, choosing the ground
A hidden defect requires a defect that pre-dates the sale, was not apparent to a normally diligent buyer, and makes the property unfit for its use or substantially reduces its value. The buyer chooses between rescission of the sale and a price reduction; if the seller knew of the defect, damages are added.
Where the defect fell within a mandatory survey (asbestos, termites, electricity, gas, energy performance), the surveyor is liable for the loss resulting from his error. Where the defect affects the structure or renders the building unfit for its purpose and the construction is less than ten years old, the ten-year structural liability and the structural damage insurance of Article L. 242-1 of the Insurance Code take over.
How the firm assists you
The firm organises the evidence from discovery: bailiff’s report, private expert report, then an application for a court-ordered expert appraisal under Article 145 of the Code of Civil Procedure, binding on all potential defendants. It notifies the defect to the seller and insurers, which interrupts the time limits.
After the appraisal, it negotiates or sues on the merits for rescission, price reduction or compensation, against the seller, the surveyor, the estate agent or the builder according to the liabilities established. It also defends sellers who are sued, establishing their good faith and the apparent nature of the defect. The firm’s guide on acquiring property in France sets out the checks that avoid these disputes.
Typical matters
The situations below are illustrative scenarios drawn from the firm’s practice and anonymised.
Dry rot concealed behind recent panelling
The buyers of a house discover widespread dry rot behind partitions redone just before the sale. The firm establishes the seller’s knowledge of the defect and obtains rescission of the sale with damages.
Incorrect termite survey
A survey certifies the absence of termites; an infestation is discovered six months later. The firm obtains an order against the surveyor and his insurer for the cost of treatment and repairs.
Structural cracks in a six-year-old house
Progressive cracks appear in a recent house. The firm invokes the ten-year liability and the structural damage insurance, obtains an expert appraisal and funding for the underpinning works.
Does your situation share one of these features? Give us the facts and we will indicate the legal ground and the timetable.
Where the defect stems from recent works rather than from the age of the building, the claim lies against the builder under the ten-year liability: see construction defects. And if you have not yet signed, the safest course is to raise the point before the deed, as explained on buying property in France.
Everything on hidden defects in property
Frequently Asked Questions
What counts as a hidden defect in a property sale?
A defect that existed before the sale, that a normally attentive buyer could not detect on an ordinary visit, and that makes the property unfit for its use or so reduces that use that the buyer would not have bought at the same price. Structural cracking, a defective drainage system, concealed damp, non compliant electrical work behind finishes and an undisclosed history of flooding are the recurring cases. A defect visible on the day of the visit, or disclosed in the file, is not hidden.
How long does a buyer have to act?
Two years from the discovery of the defect under article 1648 of the Civil Code, and that is the period which matters rather than the date of the sale, subject to the overall limitation period running from it. Where the seller concealed the defect or misrepresented the property, an action founded on fraud remains open for five years from discovery and leads to annulment of the sale. Choosing the right action at the outset matters more than the speed of the first letter.
Does the standard exclusion clause protect the seller?
Only where the seller is a private individual who did not know of the defect. The clause excluding the warranty against hidden defects is standard in notarial deeds and it is effective between private parties, but it fails where the seller knew, and a professional seller is presumed to know. Works carried out by the seller without the required authorisations or contrary to the rules of the art also weaken the clause considerably. Its presence in the deed therefore settles nothing on its own.
What must the mandatory reports cover, and what if they are wrong?
The technical file annexed to the deed covers asbestos, lead, termites where applicable, gas and electricity, energy performance, natural and technological risks and, where relevant, the state of the drainage system. An inaccurate report engages the liability of the professional who prepared it, and the buyer may claim against that professional as well as against the seller. Where a report was missing altogether, the seller cannot rely on the exclusion clause for the defect it should have revealed.
What can the buyer obtain?
Either cancellation of the sale against return of the property and of the price, or retention of the property with a reduction of the price, at the buyer’s choice, with damages in addition where the seller knew of the defect. The reduction is assessed by an expert, usually by reference to the cost of the works required, and that figure decides the case. Because the choice between the two routes is made early and is difficult to change, the arithmetic is done before the claim is issued.
What should be done as soon as the defect appears?
Have it examined by an independent expert before any repair, keep the evidence, and notify the seller in writing with rights reserved. Where the works cannot wait, the appointment of a court expert in summary proceedings preserves the position and produces the report on which the case will be decided. Insurers are notified at the same time, since a damage insurance policy or a ten year guarantee may cover part of the loss where the property was recently built or renovated.