Hidden defect in a French house or flat: the buyer’s deadline, remedies and evidence

What must you prove, with which document, and what defeats it?

In a hidden-defect claim the burden of proof sits entirely on the buyer. Each line is a point the seller will contest, with the document that carries it and the argument that knocks it down.

Does my hidden-defect file already stand up?

Tick only what you could produce tomorrow. The result is a readiness category, never a forecast of how your case will end.

What letter do I send the seller before going further?

A registered mise en demeure (formal notice) does two jobs: it opens the door to a settlement and it leaves a trace of the date you reported the damage. Send it even if you already expect to go to court.

[first name SURNAME]
[address]
[postcode, town]

[seller’s first name SURNAME]
[address]

Lettre recommandée avec demande d’avis de réception
Objet : garantie des vices cachés, bien vendu le [date of the deed], mise en demeure

[town], le [date]

Madame, Monsieur,

Par acte notarié du [date of the deed], reçu par Maître [notaire’s name], je vous ai acheté le bien situé [full address].

Le [date you discovered it], j’ai découvert [describe the damage: damp, moving cracks, dry rot, non-compliant drainage, unsafe wiring]. Ce désordre n’était pas apparent lors des visites ni à la signature. Il est antérieur à la vente, comme le montrent [report, quotes, photos, works invoices].

Il rend le bien impropre à l’usage auquel je le destine et en diminue fortement la valeur, au sens de l’article 1641 du Code civil.

Je vous mets en demeure de [pay for the works priced at ... euros / refund part of the price, under article 1644 of the Civil Code] dans un délai de [thirty] jours à compter de la réception de ce courrier.

Je vous propose de désigner ensemble un expert et de tenir une expertise contradictoire, votre assureur appelé. À défaut de réponse dans ce délai, je saisirai le juge d’une demande d’expertise sur le fondement de l’article 145 du Code de procédure civile.

Je vous prie d’agréer, Madame, Monsieur, l’expression de mes salutations distinguées.

[signature]
Pièces jointes : [deed of sale], [report or quotes], [dated photos]

Are cracks or damp found after buying a French house a hidden defect?

Yes if the defect is serious, was not visible on the day of sale and already existed then. Fair wear and tear, and anything you could see, are not. Article 1641 of the Civil Code covers hidden defects that make the property unfit for its intended use, or reduce that use so much that the buyer would not have bought or would have paid less. The Cour de cassation (supreme court for civil matters) refuses to read extra conditions into the text: it quashed a ruling that denied the warranty because the nuisance came from an external, natural event (3rd civil chamber, 15 June 2022, no. 21-13.286).

I saw marks during the viewings: can the defect still count as hidden?

Often yes. A visible sign does not make the defect itself apparent: what counts is whether an ordinarily attentive buyer, not a building professional, could gauge its extent and its cause. Article 1642 only rules out apparent defects that the buyer could see for themselves. In a case about moving cracks caused by foundations unsuited to the ground, the Cour de cassation upheld a finding of a hidden defect even though the buyers had seen crack marks on the facade, since they were neither building professionals nor obliged to bring one along (3rd civil chamber, 14 September 2023, no. 22-16.623).

I found the defect a long time ago: am I out of time?

You have two years from discovery, and never more than twenty years after the sale. Those two years are a limitation period, so they can be interrupted and suspended. Article 1648 of the Civil Code sets the two years. Since the chambre mixte (joint chambers) rulings of 21 July 2023 that period counts as a limitation period, so it is interrupted by a court claim and suspended while a survey ordered before trial is carried out (no. 21-15.809). Beyond it, only article 2232 caps the action.

The claim must be brought within two years of the discovery of the defect and may not go beyond the twenty-year backstop running from the day the right arose, which in hidden-defect matters is the day of the sale concluded by the party being sued under the warranty.Cour de cassation, chambre mixte, 21 July 2023, no. 21-17.789 (working translation, French text on Légifrance)

The deed says the property is sold with no hidden-defect warranty: is that the end of it?

No, in three situations: the seller knew about the defect, the seller is a professional or did the works themselves, or a compulsory survey was missing from the deed. The clause allowed by article 1643 only shelters a seller in good faith. A professional seller is treated as knowing the defects, and so is a seller who carried out the works that caused them. Separately, if the lead, asbestos, termite, gas, electricity or drainage survey was missing when the deed was signed, the seller cannot exclude the warranty for that defect (Construction and Housing Code, article L271-4, II).

A professional seller, and with them a seller who has carried out the works that caused the defects in the thing sold, is bound to know those defects and cannot rely on a clause limiting or excluding the hidden-defect warranty.Cour de cassation, 3rd civil chamber, 19 October 2023, no. 22-15.536 (working translation, French text on Légifrance)

How do I prove the defect existed before the sale?

With technical evidence and with dates: an expert who dates the damage, the seller’s works invoices, your viewing photos, the listing, the survey pack, neighbours’ statements. The burden sits on the buyer, and a report you commissioned alone is not enough: relying on article 16 of the Code of civil procedure, the Cour de cassation holds that a judge cannot base a decision exclusively on a non-judicial survey obtained at one party’s request (chambre mixte, 21 July 2023, no. 21-15.809). Back it up with quotes, dated photos and written exchanges.

Can I cancel the sale, or only get money back?

You choose: hand the property back and recover the price, or keep it and recover part of the price. Damages on top if the seller knew about the defect. Article 1644 of the Civil Code gives you the option between the action rédhibitoire (rescission) and the action estimatoire (price reduction). A seller who knew of the defect owes, on top of returning the price, full damages (article 1645); a seller who did not know owes only the price and the costs occasioned by the sale (article 1646). That is why proving what the seller knew matters as much as proving the damage.

Do the compulsory property surveys protect me as the buyer?

They inform you about their own subject, nothing more. A defect no survey covers can still be a hidden defect; a survey missing from the deed strips the seller of the clause. The dossier de diagnostic technique (compulsory survey pack) is annexed to the preliminary contract or to the deed (Construction and Housing Code, article L271-4, I), and what it must contain depends on the age, nature and location of the property (service-public.fr, sheet F10798). The recommendations in the energy performance survey are indicative only and cannot be held against the seller.

Do I need an expert survey, and how is one ordered?

Almost always. Start with an amicable contradictory survey, seller and insurers invited in writing. If they refuse or stay silent, ask the judge for a court survey in référé (fast-track proceedings). Where there is a legitimate ground to preserve or establish, before any trial, evidence of facts on which the outcome of a dispute may depend, the court may order an investigative measure at the request of any interested party (article 145 of the Code of civil procedure). Where the measure concerns a building, only the court for the place where the building stands has jurisdiction.

What does a hidden-defect claim cost, and who pays up front?

You do. The court survey is paid through a deposit lodged with the court and set by the judge, and a lawyer becomes compulsory above 10,000 €. Check your legal-expenses cover first. The judge who orders the survey fixes an advance and names the party or parties who must lodge it with the court registry (article 269 of the Code of civil procedure); in practice, whoever asked for the measure. Before the tribunal judiciaire (civil court), a lawyer is compulsory once the claim exceeds 10,000 € (article 761). Legal aid can cover court costs subject to means (service-public.fr, sheet F18074).

Could someone other than the seller be liable if the building is recent?

If the works are under ten years old, target the builder too: liability is strict towards the buyer of the building, and the dommages-ouvrage policy was taken out for successive owners. Every constructor is strictly liable, towards the client or the buyer of the building, for damage that undermines its soundness or makes it unfit for its purpose (Civil Code, article 1792), for ten years from acceptance of the works (article 1792-4-1). The dommages-ouvrage (structural damage) policy is taken out for the client or for successive owners (Insurance Code, article L242-1).

The seller lied to me: is there anything other than the hidden-defect claim?

Yes, dol (fraudulent concealment). Deliberately hiding information the seller knew was decisive lets you ask for the sale to be annulled, within five years of the day you found out. Deliberate concealment by one party of information it knows to be decisive for the other is fraud (Civil Code, article 1137). In cases of fraud the limitation period for the annulment claim runs only from the day it was discovered (article 1144), within the five years of article 2224. The two grounds are often argued together, one as the main case, the other in the alternative.

Do I need a French lawyer, and what can Julie do before that?

Julie sorts your documents, reads the clause and the deed, places your deadline and drafts the formal notice. A lawyer takes over for the survey application and the court claim. Before the tribunal judiciaire (civil court) a lawyer is compulsory once the claim exceeds 10,000 € (article 761 of the Code of civil procedure), which is the norm in property matters. Below that you can act alone. Either way the winning party can ask for its costs outside the taxed costs to be repaid (article 700 of the Code of civil procedure).

What this page is built on

What should you check before continuing?

Four things to read before you send the formal notice or upload your deed of sale.