Can we turn against the seller if the accommodation has hidden defects?
You have just bought a property in France, a house, or an apartment, and you realize that this property has defects. What's worse is that the seller didn't tell you about them. They didn't mention these defects in any document drafted throughout the sale. So what do you do now? If you didn't know, It's actually possible to operate the guarantees in order to obtain financial compensation or perhaps even the cancellation of the sale altogether.
What is a hidden vice?
- Non-standard heating
- Non-standard electricity
- Foundation problems
- The fragility of the housing structure
- Leaks
- Presence of moisture
- Damaged frames
- Non-constructible land
- Potential for flooding
- Insect and termite infestations
- Other devastating animal infestations
All of these defects should be mentioned and listed in the Dossier de Diagnostic Technique, a list of mandatory surveys done on the property to see if it's in perfect condition and ready for sale.
What is the non-warranty clause for hidden defects?
Some sales contracts in France include a non-warranty clause for hidden defects, upon which the buyer accepts the property as it is and waives any action. If the seller is not a professional, this clause is legal and they will not be required to pay damages (according to French law Article 1646 of the Civil Code).
On the flip side, if the buyer is able to prove that the seller was aware of the defect and intentionally did not inform them about it, this will be considered as “acting in bad faith.” As such, the seller (former owner) will be required to reimburse the buyer (new owner) for repairing the defect. In addition, they must also compensate the buyer for all damages caused by the hidden defect (according to French law Article 1645 of the Civil Code).
The buyer will have to prove this bad faith (i.e. transport costs, guarding, dismantling for expertise, dyeing costs, etc.).
How do I get in touch with the previous owner?
Before going to court in France, the first step is to contact the former owner and attempt to settle the disputes amicably. Send contact via a registered letter with an acknowledgment of receipt. This mail should specify the hidden defect attached with supporting documents. It should also mention how you can receive compensation.
If the previous owner does not comply, then it will be necessary to refer the matter to a judge in the Judicial Court (formerly District Court) of proximity in France. And similarly to the registered letter, you should put forth the case with supporting documents that prove the hidden defect (i.e. quotes, certificates, expert reports, etc.) and that the seller (previous owner) intentionally did not mention them during the real estate sale (acting in bad faith).
Important Note: it is not recommended to carry out work before obtaining a settlement of the dispute.
How to proceed with compensation?
According to the French law Article 1644 of the Civil Code, the buyer may obtain financial compensation or cancel the sale altogether. If the sale is canceled, the buyer must return the property in its current condition. The seller then has to reimburse the price of the property, the notary fees, as well as the interest accumulated since payment.
When talking about price reduction, experts must estimate the resulting loss in value (calculated according to the cost of the work to be done to improve the property's condition). The buyer then retains the property.
What does the law say about latent defects?
- It is not apparent when buying
- It exists on the date of purchase (pre-sale or concurrent defect)
- The defect makes the property unfit for residential use (partial or total)
This gives rise to financial compensation or cancellation of the sale if the buyer had been aware of these defects before signing the sales contract. The guarantee against hidden defects does not apply to goods purchased in auctions (Article 1649 of the Civil Code)
How much time is available to intervene?
According to French law Article 1648 of the Civil Code, the seller—be they individual or professional—is required to guarantee hidden defects of a movable or immovable product they're selling.
French law Article 1649 of the Civil Code stipulates that the legal warranty must be activated within 2 years after the discovery of the hidden defect. However, the warranty is valid for 5 years after the purchase of the property.
If the seller was unaware of the defect during the real estate sale, the buyer can turn the warranty against them if it's proven that the defect existed at the time of the signing of the final sales contract.
- A hidden defect is one that affects the property which the seller failed to disclose.
- They can affect the interior, exterior, ground, and even the basement.
- The legal warranty must be activated within 2 years of the discovery of the hidden defect. However, the warranty is valid for 5 years after the purchase of the property.
- Some sales contracts include a non-warranty clause for hidden defects, upon which the buyer accepts the property as it is and waives any action.
- Before going to court, the first step is to contact the former owner in order to settle the disputes amicably.
- If the situation cannot be resolved amicably, the new owner can then refer the matter to the judge at the judicial court (formerly district court) of proximity.
- It is possible to operate the guarantees in order to obtain financial compensation or the cancellation of the sale.
You want to
to sell in Paris or its surroundings ?
Posted on 07/03/2023 by
Andy LECUYER
