What is a hidden defect in French real estate?

The definition in Article 1641 of the French Civil Code

Article 1641 of the French Civil Code provides that the seller is bound by a warranty covering hidden defects in the thing sold that make it unfit for its intended use, or that reduce that use to such an extent that the buyer would not have purchased it, or would have paid a lower price, had the buyer known of them.

This warranty is a statutory one: it applies to every sale, including between private individuals, and even where the seller was unaware of the defect. Article 1643 of the French Civil Code indeed states that the seller is liable for hidden defects even if the seller did not know of them, unless a contrary clause applies, whose scope is examined in another question of this guide.

The three cumulative conditions of a hidden defect

To obtain the benefit of the warranty, the buyer must show that the flaw meets three requirements, assessed case by case by the courts.

• A hidden flaw: it must not have been detectable during viewings by a normally attentive buyer. Article 1642 of the French Civil Code excludes apparent defects and those the buyer could have discovered by themselves. The courts are more demanding with a buyer who is a building professional than with a lay buyer.
• A flaw predating the sale: the defect must have existed, at least in embryonic form, on the day ownership was transferred. A problem that arose after the sale falls outside the warranty. That the defect predated the sale is most often established through an expert appraisal.
• A serious flaw: it must make the property unfit for use as a home, or reduce that use to the point that the buyer would not have bought it, or would have paid less. A mere inconvenience or the normal wear of an older property is not enough.

Examples of defects accepted or rejected by the courts

The classification always depends on the concrete circumstances: the layout of the premises, visible clues during viewings, information given by the seller. The situations most frequently encountered in practice are generally analysed as follows.

Dry rot or an infested roof frame that was invisible without intrusive testing is often accepted as a hidden defect where the infestation was undetectable and predated the sale. Structural cracks that were filled in or covered up are also often accepted, and the concealment may in addition reveal bad faith. Recurring water infiltration that was not disclosed may qualify if it was undetectable during viewings. By contrast, visible damp and marks apparent during viewings are an apparent defect, so the warranty is excluded (Article 1642 of the French Civil Code). Finally, the normal wear of an older property is not a defect at all: the buyer of an older home must expect a degree of wear and tear.

Who bears the burden of proof

It is for the buyer to prove the three conditions: that the flaw was hidden, that it predated the sale and that it is serious. In practice, this proof almost always requires an expert appraisal, amicable at first, then court-ordered if the dispute persists, because the origin of the problem must be dated and its consequences on the use of the property must be measured.

Keeping every useful item of evidence from the moment the problem is discovered (dated photographs, bailiff's reports, repair quotes, written exchanges with the seller) considerably strengthens the file.