- Possible action against hidden defects
- Serious and hidden defects for a guarantee
- What is a hidden vice
- A limiting clause: concealed or not apparent hidden defect?
- Incorrect technical diagnosis: responsible seller or not?
- Cancellation or price reduction of real estate
- In the old: to think about damage insurance
- To find out more about hidden defects in real estate
After buying a house, what if you discover, once installed, serious defects that existed well before the sale? Various solutions can get you out of this bad situation. The legal advice of System D:
Possible action against hidden defects
In the event of hidden defects discovered after the purchase of a house, you can ask the court to cancel the sale or refund part of the price. You will win if the seller is declared responsible for hidden defects. For this, the problem must be serious and not apparent at the time of acquisition. However, most deeds of sale contain a clause that the seller can not be held responsible for defects he ignores. This mention does not deprive you of any recourse but you will have more to prove its bad faith...
Serious and hidden defects for a guarantee
To bring the hidden defects warranty into play, the discovered defect must:
- to prevent you from living normally in the house;
- or reduce its use so much that you would not have bought it, or not at that price, if you had known about it.
Justice, seized many times for this type of litigation, specifies the outline of these conditions.
What is a hidden vice
Hidden defects were considered:
lack of foundation, noise from a collective boiler and even an aesthetic defect.
In the latter case, the purchaser discovered that part of the main room was not tiled. Not only did the sellers not inform the purchaser of this defect but he had hidden it by a carpet during the visits. The seller was ordered to return € 11,000 on the sale price while the repair work cost € 450.
Conversely, hidden defects were not considered:
- the absence of sewage in an old house located in the open country;
- Sealing problems when there was foam on the roof of the house and masonry.
A limiting clause: concealed or not apparent hidden defect?
Hidden vice does not mean hidden but not apparent. The seller can therefore be held responsible for defects he does not know existed at the time of sale.
To limit this responsibility, there is a parade: provide in the sales contract a clause of unsecured. It is present in almost all acts of notaries. It may be worded, for example, as follows: "The new owner will take the property in its present state, on the day of entry into use, with all its apparent or hidden defects, without recourse against the former. owner for any reason whatsoever ".
This clause is ineffective in case of bad faith of the seller. For this the buyer must prove that the seller was aware of the defect before the sale.
The professional seller (for example: the promoter) is automatically considered to be in bad faith. But not the real estate agent. Intermediate between the seller and the buyer, he is not responsible for hidden defects.
On the other hand, an individual can be considered a professional and not be able to invoke the disclaimer. Example: A salesman had designed and installed a chimney. The unsuitable construction caused a fire. His responsibility has been retained.
Incorrect technical diagnosis: responsible seller or not?
The seller is obliged to provide the purchaser with a set of technical diagnoses. For example: presence, asbestos, xylophagous insects, lead in paintings. They must be performed by qualified professionals.
But, can liability for hidden defects of the seller be engaged if a diagnosis is erroneous? A seller in good faith is not responsible. On the other hand, if he knows the fault, he will be declared responsible even if the diagnosis is negative. This is the position taken by the courts. In this case, the seller had concealed the presence of termites by clogging the damage done by insects. The diagnoser had not noticed their presence. Because of his dishonest maneuvers, the seller was found responsible.
Cancellation or price reduction of real estate
If you enter justice for hidden defect, you can choose between two types of procedure:
- request a cancellation of the sale by engaging a so-called crippling action;
- or a price decrease with an "estimated action".
If you opt for cancellationyou will have to return the property in the state where you bought it. The seller will refund the price paid including fees (notary fees, interest accrued...).
If you prefer the price reduction, the judge will order an expertise to establish its amount.
In both cases, from the moment you notice the defect, you have two years to appeal to the High Court of the place where the housing is located. You must have a lawyer.
If the bad faith of the seller is established you can get in addition to damages.
In the old: to think about damage insurance
The guarantee of hidden defects is mainly implemented in the old real estate.
For the purchase of such a property be particularly vigilant. No apparent defect should escape you. They will be so many arguments to lower the price or give up the purchase. For visible defects discovered after the fact, you will not be able to invoke the guarantee of hidden defects.
But all may not be lost if they are linked to extensive extension or renovation work (less than 10 years old) and compromise the solidity of housing or make it uninhabitable. You can put the ten-year guarantee into play and turn against the craftsman or company that carried out the work. The seller was also able to subscribe for this work a damage insurance-work transmitted for 10 years to the successive owners of the house. This insurance will then be responsible for compensating you.
To find out more about hidden defects in real estate
You can ask your Adil (departmental agency for information on housing): address on the site anil.org or by telephone on 08 20 16 75 00.