Hidden Defects in French Real Estate

A hidden defect is a flaw in the property sold that makes it unfit for its intended use or severely reduces that use (Article 1641 of the French Civil Code). Three cumulative conditions apply: the flaw was not apparent at the time of sale, predated it and is sufficiently serious. The buyer then has remedies against the seller.

A hidden defects claim must be brought within two years of the discovery of the defect, not of the sale (Article 1648 of the French Civil Code). This limitation period can be suspended, notably by a court-ordered expert appraisal, within a long-stop limit of twenty years from the day of the sale.

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).

The hidden defects exclusion clause, lawful under Article 1643 of the French Civil Code, protects only a private seller acting in good faith. It is set aside if the seller knew of the defect or is a real estate or building professional, who is presumed to know the defects of the property sold.

The hidden defect covers a non-apparent flaw that makes the property unfit for its use (Article 1641 of the French Civil Code). Fraud (dol) targets the seller's intentional deception (Article 1137) and allows the sale to be annulled. Non-conforming delivery applies when the property differs from what the contract promised (Article 1604).

The surveys in the technical survey file inform the buyer but do not cover every flaw in the property. Without a valid lead, asbestos, termites, gas, electricity or non-mains drainage survey, the seller cannot contract out of the corresponding hidden defects warranty (Article L. 271-4 of the French Construction and Housing Code).

The seller's best protection is transparency: disclose in writing all known flaws in the preliminary contract, and attach a complete technical survey file with the documents on works and past insurance claims. The exclusion clause of Article 1643 of the French Civil Code completes this protection, but it never covers bad faith.