Vices cachés are hidden or “latent” defects which exist before the sale but of which the buyer was unaware at the time of the property transfer. We’ve asked French property law expert Lindsay Kinnealy to explain the ins and outs of the legal framework in France concerting this issue, and what can a buyer do when faced with this situation.
Introduction to vices cachés
Vices cachés rules in France provides statutory protection for a buyer against a seller who may not have disclosed important information about the condition of the property being purchased.
This type of defect must affect the anticipated use of the building to such a degree that the buyer would not have acquired it or would have paid a lower price to take account of this. However, if the property were put to an unusual use, of which the seller had not been informed, the latter would not be held liable. Nor would the protection apply where it can be demonstrated that the seller informed the buyer of the defect at the time of the sale. The seller can be protected by including a clause in the contract clearly stating that the buyer has been informed about the defect and accepts full knowledge and responsibility.
The general clause in contracts stating that the property is sold ‘as seen’ (en l’état) and exonerating the seller from any responsibility for latent defects, would not necessarily hold up, particularly if his bad faith is established.
When is a defect considered a vice caché?
A defect would be considered latent or a vice caché if a non-professional buyer, having carefully inspected the building to the extent normally demonstrated by any layman, had reasonably and legitimately been unaware of it at the time of the sale. The courts consider that a buyer should have adopted a degree of vigilance when viewing and a seller would not be liable for defects which should have been apparent to the buyer without additional expert advice.
So what remedies are available to a buyer who discovers a latent defect after the sale?
A buyer could opt to make a claim for repayment of the sale price plus damages or to retain the property and claim an appropriate sum in reduction of the sale price. The courts would appoint experts to evaluate such a sum.
A time limit for commencing action does apply, however. Where a defect is uncovered, article 1648 of the French civil code permits the buyer to take legal action up to two years from the date of discovery, so prompt action is needed.
The decision regarding which defects are latent or apparent can be at the discretion of the courts. Defects which have previously been judged to be vices cachés are varied e.g. cracks in exterior walls hidden by vines, or in interior walls hidden by heavy wallpaper, the validity of planning permission where notice to discontinue works has been served on the seller, or damp/lack of damp proof course that was only visible to a buyer once the flooring had been lifted.
So, when inspecting a property, remember the old adage “buyer beware” – be vigilant and perhaps appoint a property surveyor to cast a professional eye over the place before committing yourself. Though you may be told surveys are not carried out in France, there are a number of surveyors to be found there.
•With thanks to Lindsay Kinnealy, Senior International Property Solicitor at Slater and Gordon Lawyers, specialising in French Property.
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