What remedies does the buyer have for a hidden defect?
A buyer facing a hidden defect chooses between returning the property for a refund of the price (rescissory action) or keeping it and obtaining a price reduction (estimatory action), under Article 1644 of the French Civil Code. If the seller knew of the defect, the seller also owes full damages (Article 1645).
Rescissory or estimatory action: the choice belongs to the buyer
Article 1644 of the French Civil Code gives the buyer an option: return the thing and obtain a refund of the price (the rescissory action, which cancels the sale), or keep the thing and recover part of the price (the estimatory action). This choice is free: the seller cannot impose it, and the courts assess the amount of the reduction in their discretion, often aligning it with the cost of the remedial works.
The rescissory action makes sense for defects that genuinely compromise habitability; the estimatory action is the most common in real estate, since the buyer usually wishes to keep the property.
Damages: everything depends on the seller's good faith
If the seller knew of the defect, the seller owes, in addition to the refund of the price, full damages to the buyer: cost of repairs, loss of enjoyment, rehousing costs (Article 1645 of the French Civil Code). Under settled case law, a professional seller is presumed to know the defects of the property being sold.
If the seller was unaware of the defect, the seller only owes the refund of the price and the reimbursement of the costs occasioned by the sale (Article 1646 of the French Civil Code), and then only if no valid exclusion clause applies.
Before which court and under what conditions
Disputes are heard by the judicial court (tribunal judiciaire). Representation by a lawyer is mandatory there, except for claims of 10,000 € or less (Article 761 of the French Code of Civil Procedure). For claims not exceeding 5,000 €, a prior attempt at conciliation, mediation or a participatory procedure is in principle required before bringing the case to court (Article 750-1 of the French Code of Civil Procedure).
An amicable settlement remains possible at any time: payment of the works by the seller, a negotiated price reduction. It is best recorded in a written settlement agreement (Article 2044 of the French Civil Code), which puts a definitive end to the dispute.
Step by step
- 1Document the problem the moment you find it
Gather dated photographs, official findings, repair quotes, surveys and every written exchange with the seller. The date of discovery starts the two-year period of Article 1648 of the Civil Code.
- 2Commission a first expert report
A private expert report establishes the origin, the pre-existence and the seriousness of the defect. It puts a figure on the works and becomes the basis for negotiation.
- 3Put the seller on formal notice
Send a recorded-delivery letter with acknowledgement setting out the defect, the provisions relied on and what you are claiming (rescission or a price reduction). Note: this letter does not interrupt the limitation period.
- 4Try to settle out of court
Direct negotiation, a court-appointed conciliator, or mediation. For claims of 5,000 € or less, this step is in principle compulsory before trial (Article 750-1 of the Code of Civil Procedure).
- 5Go to court within the two years
Failing agreement, apply for an expert appointment in interim proceedings (Article 145 of the Code of Civil Procedure), which suspends the limitation period, then sue the seller on the merits before the tribunal judiciaire.
Frequently asked questions
Can the sale be cancelled entirely for a hidden defect?
Yes, through the rescissory action of Article 1644 of the French Civil Code: the buyer returns the property and recovers the price, together with the costs occasioned by the sale. The courts grant it when the defect genuinely compromises the use of the property.
Can the seller simply offer to pay for the works?
Yes, an amicable agreement is always possible and often faster than a trial. It is prudent to record it in a written settlement agreement (Article 2044 of the French Civil Code), which fixes the amount covered and bars any further claim over the same problem.
Can the real estate agent or the notary be held liable?
Their liability can be pursued if they breached their duty to advise or inform, for example by overlooking an anomaly known to them. It is assessed case by case and comes, where applicable, on top of the remedies against the seller.
Is an amicable attempt mandatory before going to court?
For claims not exceeding 5,000 €, an attempt at conciliation, mediation or a participatory procedure is in principle required (Article 750-1 of the French Code of Civil Procedure). Above that amount it remains optional, but often useful.
Read next
- Code civil, article 1644 (Légifrance)
- Code civil, article 1645 (Légifrance)
- Code civil, article 1646 (Légifrance)
- Code civil, article 2044 (Légifrance)
- Code de procédure civile, articles 145, 750-1 et 761 (Légifrance)
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