Asbestos Survey: Must the Surveyor Sound the Walls? The Court of Cassation Answers

Imagine: you have just bought a flat in Bayonne, in a 1970s block of flats. The asbestos survey, compulsory before the sale, concludes "no asbestos in the parts visited." Reassured, you sign. Six months later, you decide to knock down a wall to enlarge the living room. Bad surprise: the plaster contains asbestos. Work stops, the cost of asbestos removal is estimated at €15,000. What to do?

This question was decided by the Court of Cassation on 14 September 2017 in a landmark judgment. Can the surveyor limit his inspection to what is visible to the naked eye? Or must he go further, for example by tapping walls to detect hidden materials? The answer interests every owner, buyer or seller, in Orthez as elsewhere.

The High Court quashed a Court of Appeal judgment that had exonerated a surveyor on the ground that he did not have to carry out non-destructive tests. A look back at a decision that clarifies the obligations of property survey professionals.

The facts: a story as happens every day

Mr X, owner of a building in Bayonne, entrusts Bureau Veritas with an asbestos survey before the sale. The surveyor inspects the common and private parts, and produces a report concluding that there is no asbestos in the elements visited. One drawback: he did not carry out any sounding, scraping or noise tests (consisting of tapping walls to detect materials under a covering). He limited himself to a visual examination.

After the sale, the buyer discovers asbestos in partitions and ceilings not visible on the surface. He sues Bureau Veritas for civil liability (Article 1240 of the Civil Code, which requires reparation for damage caused by fault) for damages. He argues that the surveyor should have carried out non-destructive tests, including sound tests, to verify the composition of materials behind coverings.

The Court of Appeal of Pau dismisses the buyer's claim, considering that the surveyor had correctly performed his mission by inspecting the visible and accessible parts. For the trial judges, the absence of sounding was not negligent because the contractual mission was limited to visible parts. Dissatisfied, the buyer appeals to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation quashes the appeal judgment. It holds that the Court of Appeal deprived its decision of a legal basis (i.e., it did not give sufficient legal foundation to its reasoning) by failing to respond to the buyer's submissions. The buyer argued that the surveyor could not limit himself to a simple visual inspection: he had to deploy all necessary means, including non-destructive tests such as sound tests.

Article 1240 of the Civil Code (formerly 1382) is the basis of the action: "Any act of man, which causes damage to another, obliges the person by whose fault it occurred to repair it." To engage the surveyor's liability, it is necessary to prove fault, damage and a causal link. Here, the buyer argued that the absence of sounding constituted fault because the survey was not reliable.

The Court of Cassation does not say that the surveyor committed a fault. It refers the case to another Court of Appeal (that of Bordeaux) to examine whether, given professional standards and the rules of the art, the surveyor should have carried out soundings. But it lays down a clear principle: the surveyor cannot be satisfied with a visual examination without checking whether materials are hidden. He must, where appropriate, make reservations about uninspected parts.

This decision is part of a jurisprudential trend aimed at strengthening the obligations of surveyors, considered as professionals bound by an obligation of result or, at least, by a reinforced obligation of means. It reminds that the survey is not a mere administrative formality, but a technical act engaging the liability of its author.

What this changes for you — concretely

For landlord owners in Orthez, this decision is a warning: if you have an asbestos survey carried out before a sale or letting, make sure the professional uses appropriate methods. A simple "glance" is not enough. The surveyor must, if necessary, carry out non-destructive tests (scraping, percussion) to detect asbestos under coverings.

For buyers, this is an additional legal weapon. If you discover asbestos after the purchase, whereas the survey concluded its absence, you can sue the surveyor for liability. But beware: you will have to prove that the professional did not deploy the necessary means. Keep the report carefully and call in an expert to establish the fault.

A concrete example: in Bayonne, an owner had to pay €12,000 for asbestos removal work after discovering asbestos in partitions that the surveyor had not sounded. Thanks to this judgment, he was able to obtain compensation from the surveyor, who had to indemnify the entire work plus the expert's fees.

For co-owners, the decision is equally important: when carrying out a global technical survey (DTG) or an asbestos survey in the common parts, the management company must ensure that the surveyor does not limit himself to a visual inspection. In the event of a breach, the co-ownership could take action against the service provider.

Four tips to avoid this type of dispute

• Insist on a survey with soundings: Before signing a contract with a surveyor, ask him in writing whether he plans non-destructive tests (scraping, sound test). If not, insist or change provider. A reliable survey is worth a few hundred euros more.
• Check the reservations in the report: Read the survey report carefully. If the professional mentions "non-visible parts" or "absence of sounding", this should alert you. Ask him to specify which areas were not inspected and why.
• Keep all documents: Keep the contract, the report, correspondence with the surveyor and photos of the premises. In the event of a dispute, these elements will be essential to prove that the professional failed in his obligations.
• Call in an expert if in doubt: If you suspect the presence of asbestos despite a negative survey, do not wait. Have additional analyses carried out by an approved laboratory. The cost (about €100 to €300 per sample) is negligible compared to the health and financial risks.

Further insights: related case law and developments

The Court of Cassation had already had the opportunity to rule on the obligations of surveyors. In a judgment of 13 July 2016 (No. 15-18.683), it held that the surveyor had to carry out a careful examination of materials and could not be satisfied with a simple visual inspection. The judgment of 14 September 2017 confirms and reinforces this requirement.

However, some Courts of Appeal (such as that of Versailles) had previously considered that the surveyor was not obliged to carry out destructive tests, unless otherwise stipulated in the contract. The 2017 decision puts an end to this divergence: the professional must, in all circumstances, deploy the technical means appropriate for detecting asbestos, which includes non-destructive tests where possible.

This development is part of a general strengthening of consumer protection in property matters. Surveyors are now subject to a reinforced obligation of means, or even an obligation of result for certain surveys (such as the EPC). It is therefore likely that surveyors' liability will be increasingly engaged in the event of error or omission.

In practice: what to do

5-point checklist if you are faced with a disputed asbestos survey:

1. Do not delay: The action for liability against the surveyor is time-barred after 5 years from the discovery of the damage. If you discover asbestos, act quickly.
2. Have it recorded: Have a bailiff's report or an amicable expert appraisal carried out to prove the presence of asbestos and the absence of sounding in the initial report.
3. Send a formal notice: Send a registered letter with acknowledgement of receipt to the surveyor requesting amicable compensation. Mention the Court of Cassation judgment of 14 September 2017.
4. Consult a lawyer: If the response is negative or absent, contact a lawyer specialised in property law (such as Maître Cécile Zakine) to initiate legal proceedings.
5. Assess the loss: Calculate all costs: asbestos removal work, loss of property value, expert fees, loss of enjoyment. The surveyor may be ordered to reimburse everything.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →