Seller: how do you protect yourself against a hidden defects claim?

Transparency, the seller's first legal protection

A flaw brought to the buyer's attention before the sale is no longer a hidden defect: Article 1642 of the French Civil Code excludes the warranty for apparent defects and those the buyer could have discovered by themselves. Disclosing in writing, in the preliminary contract, the problems known to the seller (an old water infiltration, a monitored crack, a compensated insurance claim) brings them into the contractual field: the buyer purchases with full knowledge of the facts and can no longer complain about them afterwards.

This written disclosure protects twice over: it strips the flaw of its hidden character and it makes any later accusation of fraudulent concealment very difficult.

Putting together a complete file to attach to the sale

The more complete the file handed to the buyer, the less room there is for a later claim. The following documents are worth gathering and attaching.

• The technical survey file, complete and valid on the day of the deed: a missing survey among those listed in paragraph II of Article L. 271-4 of the French Construction and Housing Code (lead, asbestos, termites, gas, electricity, non-mains drainage) deprives the seller of the exclusion for the corresponding risk.
• The invoices, warranties and insurance certificates for the works carried out, including the structural damage insurance (dommages-ouvrage) where applicable.
• The insurance claims declared and the compensation received (water damage, drought, natural disaster).
• Any earlier expert or inspection reports (structure, damp, drainage).
• In a co-owned building, the minutes of general meetings mentioning problems affecting the building.

The exclusion clause: useful, but not magic

Notarial deeds between private individuals almost always contain an exclusion clause, a common wording of which is close to: "the buyer shall take the property in the condition it is in on the day possession is taken, with no recourse against the seller for any hidden defects that may affect it". Based on Article 1643 of the French Civil Code, it is fully effective for a private seller acting in good faith.

Its limits must be understood: it falls away if the buyer proves that the seller knew of the defect (Article 1645 of the French Civil Code), it is ineffective for a professional seller or one who personally carried out the works that caused the problem, it does not apply to the risk covered by a missing survey, and it never covers fraud (Article 1137 of the French Civil Code). The precise drafting is a matter for the notary, who adapts it to the situation.

What you must never do

Certain behaviours, meant to reassure the buyer, systematically backfire on the seller in the event of a dispute.

• Concealing traces of problems: fresh paint over damp stains or boxing placed over cracks are classic indicators of concealment, the terrain of fraud (Article 1137 of the French Civil Code).
• Answering the buyer's or the notary's written questions inaccurately: a false answer establishes bad faith.
• Omitting an insurance claim already declared: the documentary trail is easy to retrieve.
• Downplaying a known problem by presenting it as purely cosmetic when its cause is structural.