Real estate: what to do in case of hidden defects? The notary's advice

A couple plans to buy a pavilion built in the 1940s. They made an appointment with their notary. Their purpose: to have details of the conditions under which they will buy the property, but also of the possible remedies if they discover "hidden defects" after their acquisition, even if the construction seems to them to be in good condition. The seller remains responsible for defects hidden at the time of the sale, when these "render the goods unfit for the intended use or diminish that use to such an extent that the purchaser would not have taken the decision to purchase, or in any case not at that price, had he been aware of it. (article 1641 of the CC)'. Conversely, the seller is not responsible for the defects that were apparent. (article 1642 of the CC)

In most cases, the seller of an old building (over 10 years of age) is entitled to a global exemption from the guarantee of hidden defects. Indeed, in the majority of cases, the sales documents contain a clause stating that the seller will not be liable for the hidden defects. These clauses are valid only if the seller is a non-professional and in good faith.? Consequently, the buyer cannot require repairs to be carried out. The price is deemed to have been determined on the basis of the condition that the purchaser may have seen in visiting the property during the course of the pre-contract negotiations.

The purpose of these non-guarantee clauses is to promote social peace: after the sale, the parties must have as little reason as possible to appeal against each other. Since the negotiation of a sale takes some time, it is during this period that the purchaser must become aware of the condition of the property. It is therefore strongly recommended that the purchaser carefully examine the property he is planning to purchase and, if necessary, be assisted by a building professional if he has doubts about any aspect of the building.

Contrary to what is often believed, hidden vice is not a vice hidden by the seller but a vice that is not apparent. In the presence of an exemption clause from the warranty of defects, the buyer who claims to have discovered a hidden defect will not be completely destitute. Within two years of the discovery of the defect, he will be able to bring an action against his seller claiming that he has deliberately hidden the defect. Depending on the factual circumstances, it will not be easy to demonstrate bad faith on the part of the seller, who will be liable only in this case.

It may be noted, however, that while the exemption clause for hidden defects is most often used when the seller is a non-professional in real estate, the recent multiplication of mandatory rules protecting the purchaser (withdrawal period, termites, lead, asbestos...) Gradually reverses the balance of power in favour of the purchaser.