Action under the warranty for latent defects: your lawyer’s point of view

What is a hidden defect in real estate?

The law governs property sales in order to protect both sellers and buyers.Article 1641 of the French Civil Code requiresthe seller to guarantee any hidden defects in the property sold that render it unfit for its intended use or reduce its value. However, the buyer may discover a defect after purchasing the property. If these hidden defects affect the property, the buyer can take action against the seller.

In practice, there are a large number of anomalies that constitute hidden defects in case law:

• An error in the surface area sold, which is less than the actual surface area;
• Excessivedamp in the house;
• Weaknesses in the building’s foundations ;
• The presence of lead, even though this was not mentioned in the diagnosis;
• The risk of flooding in a basement used for residential purposes;
• Failure to connect the house to the sewerage system;
• Theunbuildability of a plot of land sold as buildable;
• Pollution of a site sold as a building site;
• The presence ofnoise pollution

An error in the surface area or a structural element that poses a health or safety risk to your ability to remain in the property… The bill can quickly become very expensive! Given current property prices, the damage suffered can be considerable. Do you want to ask for the sale to be cancelled or for damages to be paid? Would you like to be defended in a case involving hidden defects in property? Goldwin avocats can help you with all these specific property law issues.

Protecting yourself against hidden defects with your lawyer

Before signing any contract, your property lawyer will check the presence and content of diagnostic reports in order to advise you on your sale or purchase. This will enable you to quickly identify the presence of a potential hidden defect.

The law imposes a number of compulsory surveys to guarantee the integrity of the property, covering :

• The building’s energy performance;
• The presence of asbestos or lead;
• electrical installations
• The sewage system;
• The presence of mould;
• Carrez surface area (ceiling height of at least 1m80).

The French Elan Act (no. 2018-1021) has also added the obligation to provide the buyer with a digital logbook containing information on the monitoring and maintenance of the property in the case of the sale of a new-build property. This obligation will apply to the sale of older homes from 1 January 2025.

Enforce the guarantee against hidden defects with your lawyer

Discovering a hidden defect is not enough to implicate the seller and bring his guarantee into play. A number of elements need to be in place to trigger the guarantee against hidden defects:

– A contract of sale;

– A defect that is not apparent and unknown to the buyer;

– A defect existing at the time of purchase;

– A defect that renders the property unfit for use or significantly reduces its value, to such an extent that the buyer would not have purchased it, or would have purchased it at a significantly lower price.

While the seller must be transparent about the qualities of the property being sold, the buyer must also be vigilant when visiting the property and studying the diagnostic reports. With this in mind, your lawyer, who specialises in property law, will advise you and alert you to any points of concern about your property.

The purchaser can take action to guarantee against hidden defects within two years of the sale. Under article 1644 of the French Civil Code, you can choose between :

• An action for annulment of the sale and restitution of the purchase price;
• An action for reduction of the sale price, depending on the expert’s opinion.

If you discover hidden defects, contact Goldwin avocats to be represented in litigation and to obtain damages to compensate for your loss. If you are the seller, your expert lawyer will undoubtedly advise you on setting up a liability waiver clause.

The exclusive warranty clause

Some property sales contracts contain a warranty exclusion clause. This stipulates that the purchaser takes the property in the condition it was in on the day he took possession of it. They therefore have no recourse against the seller for hidden or apparent defects.

Be careful, however, as the warranty waiver clause is not admissible in contracts where the seller is a property or construction professional.

It also assumes that the seller is acting in good faith. This excludes the case of a latent defect known to the seller. For example, the judges of the Cour de cassation have ruled that a seller who carries out work prior to the sale in order to conceal the existence of a defect is acting in bad faith, or that a seller who conceals an old procedure relating to the collapse of a wall is acting in bad faith.

To find out more, contact your lawyer specialising in latent defects and property law in Paris.