Property sale: the purchaser can sue builders for pre-existing defects, even if the seller had already brought proceedings

Imagine: you have just bought a house in Altkirch, in the Haut-Rhin. Everything seems perfect, but six months later, you discover that the terrace railings are dangerous, or even that the roof is leaking. You learn that the seller had already sued the builder but abandoned the case. Are you helpless? What you may not know is that the right to compensation may be automatically transferred to you, without you having to start a new procedure.

This question is asked by hundreds of property owners every year. Can a purchaser sue the builders for defects that existed before the sale, even if the seller had already brought proceedings? The Court of Cassation decided in 2013, in a decision that has become a reference. And the answer is yes, provided you understand the mechanism.

In this article, I will explain this decision as if we were having a coffee in Cernay. No incomprehensible jargon: every term will be explained. And above all, I will give you practical advice to avoid being caught out.

The facts: a story like many others

The case began with a property sale in Douai, in the Nord. A private individual, whom I will call Mr Dupont, buys a building. Very quickly, he notices defects: the balcony railings have manufacturing and installation defects. They do not comply with safety standards. Mr Dupont then brings a court action against the builder and the inspection company Socotec, based on contractual liability under ordinary law (Article 1147 of the Civil Code, now 1231-1). He wins at first instance, but the Douai Court of Appeal reverses the judgment. Mr Dupont appeals to the Court of Cassation, but during the proceedings, he sells the building to a company.

The question then arises: can the purchasing company take over the action? The builder and Socotec argue that it cannot: according to them, the right to sue is personal to the seller, and the sale did not transfer that right. But the Court of Cassation did not see it that way. It recalled a fundamental principle: the right to compensation that attaches to a building is an accessory of the thing sold. It is automatically transferred to the purchaser, unless the sale contract contains an express clause excluding that transfer.

In this case, the contract said nothing on this point. The Court therefore quashed the Douai decision and referred the case to another court of appeal. The moral of the story: even if the seller has already sued, the purchaser can continue the action or bring a new one for the same damage.

The court's reasoning — explained

To understand this decision, you need to grasp a fundamental legal mechanism: the transfer of claims. In French law, when you sell a property, you also sell its accessories. For example, if you sell a house with a garden, the trees in the garden are included in the sale, unless otherwise stated. Similarly, the right to claim compensation for a construction defect is considered an accessory of the building. It therefore follows the property, like a shadow.

The Court of Cassation relies on Article 1240 of the Civil Code (formerly 1382), which sets out the principle of civil liability: "Any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation." But also on Article 1147 (now 1231-1) for contractual liability. The judges specify that, unless there is a clause to the contrary, the sale does not transfer the construction contract, but it does transfer the right to compensation arising from the non-performance of that contract.

This is not a reversal of precedent, but a confirmation. Already, in a 2004 decision (Civ. 3e, 17 March 2004, No. 02-17.310), the Court had held that the purchaser of a defective thing could sue the seller on the basis of the warranty against hidden defects, even after the sale. Here, this principle is extended to direct action against builders. The particularity is that the action had already been brought by the seller. The Court says that this does not change anything: the right to compensation is an intangible asset that is transferred like a tangible asset.

The builders' arguments? They said that the transfer of a right of action requires an express clause in the deed of sale, and that in the absence of such a clause, the purchaser has no standing. But the Court dismisses this argument: the right to sue is not a personal right; it is an accessory of ownership. It is therefore transferred automatically. In practice, this means that the purchaser can substitute for the seller in the ongoing proceedings, or bring a new action, even if the seller had already obtained a decision (unless that decision is final).

What this means for you — practically

If you are a landlord: you rent out a flat in Cernay, and the tenant complains of water ingress due to poor workmanship. You had already sued the builder before putting the property up for sale, but you changed your mind and sold. Rest assured: the purchaser can take up the baton. You do not need to worry about a loss of opportunity for the new owner.

If you are a purchaser: you have just bought a house in Altkirch, and you discover that the terrace is collapsing. The seller tells you: "I had already sued the builder, but I lost on appeal and gave up." You can take action yourself. The limitation period (10 years from the completion of the works for the decennial liability, 5 years for contractual liability under ordinary law) runs from the date of knowledge of the damage. But be careful: if the seller has already obtained a final judgment (res judicata), you cannot reopen it. The 2013 decision concerns a situation where the proceedings were still ongoing.

If you are a co-owner: there are cracks in the common parts. The co-ownership association had brought an action against the developer but sold some units. Can the new co-owners continue? Yes, because the association represents all successive co-owners. But each co-owner, individually, can also act for the private parts.

A quantified example: imagine remedial works costing €50,000. If the seller had abandoned the action, the purchaser would have had to pay out of his own pocket. Thanks to this case law, he can recover that sum. But he must act quickly: the limitation period is running. If the damage is apparent, you have 5 years from the sale to act. If hidden, 2 years from discovery.

Four tips to avoid this type of dispute

• Check the deed of sale before signing: see if it contains a clause excluding the transfer of rights to compensation. If so, negotiate its removal or ask for a price reduction. A notary can advise you.
• Have a thorough technical inspection carried out: before buying, have the building inspected by a professional (inspection company, architect). In Altkirch, this costs between €500 and €1,500, but can save you thousands of euros in works.
• Keep all documents relating to the works: contracts, invoices, correspondence with the builders, expert reports. If the seller has already brought proceedings, ask him for the case documents. This will make it easier for you to take over the action.
• In case of defects, act without delay: do not let it drag on. As soon as you notice a problem, inform the seller and the builder by registered letter. Consult a specialist lawyer to find out if you can substitute for the ongoing action. The limitation period is your enemy.

Further reading: related case law and developments

This decision is part of a trend in case law favourable to purchasers. Already in 2008, the Court of Cassation had held that the purchaser of a building could rely on the construction contract entered into by the seller (Civ. 3e, 10 September 2008, No. 07-15.949). More recently, in 2019, it extended this principle to actions on the warranty against hidden defects (Civ. 3e, 4 April 2019, No. 18-11.712).

The trend is clear: property law tends to protect the purchaser, considered the weakest link in the chain. The courts consider that the right to compensation is an attribute of ownership, and that it should not disappear with a change of owner. This makes builders more responsible, as they cannot hope to see their liability extinguished simply by successive sales.

For the future, we can expect the Court of Cassation to continue in this direction, perhaps by requiring a very clear clause to exclude this transfer. In practice, notaries are increasingly drafting standard clauses to avoid ambiguities.

Summary and next steps

FAQ:

1. Can I sue the builder if I bought a building with defects, even though the seller had already lost his case?
Yes, if the judgment is not final. If the seller lost on appeal and did not appeal further, you can take action yourself, because you are not bound by the decision made against the seller.

2. What if the deed of sale contains a clause that says I waive any recourse against the builders?
Such a clause is valid if it is express and unambiguous. You must challenge it in court if it was imposed on you abusively. Consult a lawyer.

3. What is the time limit for taking action?
For decennial liability (serious damage), 10 years from the completion of the works. For contractual liability under ordinary law, 5 years from the date of knowledge of the damage. Note: the limitation period may be interrupted by a court action by the seller.

4. Do I have to inform the seller of my intention to take action?
It is not mandatory, but it is recommended. The seller can help you by providing documents. If the action is already ongoing, you can ask to substitute for him before the judge.

5. Does this decision also apply to leases?
No, it concerns sales. For leases, the tenant can sue the landlord, but not directly the builder, except in cases of disturbance of enjoyment.

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 →