Hidden defect on French property
Hidden defects (“vices cachés” in French) are considered as THE dreaded problem during the acquisition of a property in France. Their discovery only happens once the deed of sale has been signed. It can therefore be difficult for you to pursue the seller. In recent years, the French Law regarding this issue has evolved in favour of buyers. Nevertheless, it still can be a long and tiresome process before reaching of a successful outcome.
According to the rules of French civil Law, the seller has responsibilities when selling his property. Indeed, he must ensure that the property is sold free of defects. This rule is named “the hidden defects legal guarantee”.
This guarantee is without any doubt, amongst all the obligations of the seller, the one best known to the public. Therefore, should you discover a hidden defect, this guarantee protects you. You can trigger this guarantee to obtain compensation for the damage suffered.
What is a hidden defect?
A hidden defect is a defect or abnormality that by its nature significantly affects the usefulness of the property concerned to the extent that if you had known of it before you bought the property, you would not have bought it. At the very least, you would not have paid such a price. The Law considers a defect hidden when it is relatively serious. Also, it must clearly be detrimental to the full and perfect enjoyment of your new property in France.
A hidden defect is not always a defect that the seller voluntarily conceals. It is a defect which is simply not apparent. The seller may indeed have knowingly hidden the defect. He may also have completely ignored its existence during all the time he lived in the property. You can consider as hidden defects the following anomalies:
– crumbling foundations
– mildew inside a wall
– the presence of fungus or termites
– the fact that the property can flood
– the unstable nature of the land
– structural damage or even poor waterproofing
French Law considers a defect as hidden if it meets the following condition:
– it must predate the sale (signature of the deed of sale). Rely on the expertise of professionals in France. You must prove that the defect was already present when you signed the deed of sale. These expert reports have legal value.
– it must be invisible. You will not have any recourse against an obvious defect, visible to the naked eye. The Justice system takes this into account and in the event of an apparent defect, the seller cannot be held responsible. So, do not forget to inspect in great detail the property in France during your visits!
– it must clearly hinder your day-to-day use of your new property. It really means that you need to be able to prove that if you had knowledge of the defect in question, you would not have bought the property.
If the defect meets these three conditions, you will be able to use the hidden defects legal guarantee. It will allow you to obtain compensation for the damage suffered.
The hidden defects legal guarantee
The French civil code for property Law provides a pre-contractual legal obligation called hidden defects guarantee. It is the seller’s responsibility. The latter must undertake to hand the property over to you free of any problems. In other words, the property that the seller markets must be defect-free. If it is not the case, you can then claim against the hidden defects guarantee breached by the seller. You can then take two separate types actions. The goal is to assert your rights and obtain redress for the damages you find yourself a victim of.
– first option. You ask for the cancellation of the sale. Before the Tribunal, you can ask for a reimbursement of the full price paid. In exchange, of course, for the restitution of the property to the seller.
– second option. You ask for a reduction of the price. The judge can request a reduction of the purchase price based on the severity of the hidden defect. The Justice system bases the calculation of this reduction on the cost of the repair of the hidden defect.
In addition to triggering one of the two actions above, you will also be able to claim damages and interests. You can decide that the full refund or the reduction in the transaction price is not enough to cover the damages you suffered. Therefore, you can claim for additional damages to make up the difference. Damages and interests are automatically due when the seller is a professional such as a real estate agent or a Notaire. Indeed, a presumption of bad faith is placed on the shoulders of the professional. The Justice considers that because of his profession, he should have been able to detect the hidden defect.
If the seller is not a professional, you will have to demonstrate that he had knowledge of the defect when he sold you the property. This can be a delicate process. Additionally, obtaining damages and interests when dealing with an individual can prove to be difficult to obtain.
To initiate an action, you have a period of 2 years from the date of the discovery of the defect. The action may be brought against a professional seller as well as a non-professional, knowing that the severity is increased for professionals.
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