Latent Defect: 5-Year Limitation Period Removed by the Court of Cassation - What It Means for You

Imagine: you have just bought a house in Capbreton, with a view of the port. Everything seems perfect. But after a few months, cracks appear. Your expert diagnoses a latent defect (a serious defect not apparent at the time of sale). You want to take action against the seller. But how long do you have? Until recently, a 5-year limitation period from the sale could bar your claim. The Court of Cassation, in a judgment of 25 May 2022, changed the situation.

This decision answers a crucial question: what is the starting point of the limitation period for bringing a claim under the warranty against latent defects? The answer: the discovery of the defect. Gone is the 5-year limitation period provided for by Article L. 110-4 of the Commercial Code for sales between traders. Now, the action must be brought within 2 years of the discovery of the defect, without exceeding 20 years from the original sale (Article 2232 of the Civil Code).

This clarification is essential for owners, buyers and property professionals. In this article, I break down this decision, its practical implications, and give you practical advice to avoid pitfalls. And if you are in Saint-Paul-lès-Dax or the Landes region, I show you how this applies to your daily life.

The Facts: A Story as Common as Any

Mr X, a homeowner in Capbreton, buys a house in 2015 from a developer. In 2018, he discovers significant water seepage due to a defect in the roof waterproofing. He sues the seller in 2021, i.e. 6 years after the sale. The seller raises the defence of limitation: according to Article L. 110-4 of the Commercial Code, the action between traders would be time-barred after 5 years from the sale. But the Court of Appeal rules in favour of Mr X, and the Court of Cassation confirms.

The judges recall that the law of 17 June 2008 reduced the limitation period from 10 to 5 years, but without specifying its starting point. However, for latent defects, the starting point of the limitation period for bringing an action is the discovery of the defect (Article 1648 of the Civil Code). Article L. 110-4 can no longer be an independent limitation period. Consequently, the action under the warranty against latent defects must be brought within 2 years of the discovery of the defect, without exceeding 20 years (limitation period under Article 2232).

In short, Mr X could act because he had acted within 2 years of discovery, even though more than 5 years had passed since the sale. This decision unifies the regime for latent defects, whether it is a sale between private individuals or between traders.

The Reasoning of the Court — Analysed

The Court of Cassation relies on several texts. First, Article 1648 of the Civil Code: "The action arising from latent defects must be brought by the buyer within a period of two years from the discovery of the defect." Next, Article L. 110-4, I, of the Commercial Code, which sets a 5-year limitation period for obligations between traders. Finally, Article 2232 of the Civil Code, which provides for a 20-year limitation period for personal or movable actions.

Before this decision, some courts considered that the 5-year period under Article L. 110-4 was a limitation period, applying even if the defect was discovered after those 5 years. The Court of Cassation rejects this interpretation. It recalls that the 2008 law removed the limitation nature of the 5-year period, because it did not set a specific starting point. The starting point can therefore only be that of the general law: Article 2224 of the Civil Code, which starts the period from the manifestation of the damage. However, for latent defects, this damage manifests itself through the discovery of the defect.

Thus, the 2-year period under Article 1648 prevails, and the 5-year period under Article L. 110-4 is now only an ordinary limitation period, which runs from the discovery of the defect. But beware: a second limitation period of 20 years (Article 2232) applies, from the original sale. Once this period has passed, no action is possible, even if the defect is discovered later.

In summary, the claimant has 2 years from the discovery of the defect, and at most 20 years from the sale. This is a safeguard for buyers, but also an obligation to act diligently.

What This Changes for You — Practically

For a buyer: you now have 2 years from the discovery of a latent defect to act, rather than 5 years from the sale. Example: you buy a house in Saint-Paul-lès-Dax in 2010. In 2025, you discover a defect. You can act until 2027, because the 20-year limitation period (2030) has not been reached. Before, the 5-year period (2015) would have barred your action.

For a seller: you are exposed for longer. If you sell a property with a defect, you can be sued up to 20 years after the sale. But you benefit from the 2-year limitation period from the buyer's discovery of the defect.

For a professional (developer, estate agent): the limitation period for a recourse action (the seller's action against his own supplier) follows the same regime: 2 years from the service of the claim (Article 1648, paragraph 2), with a 20-year limitation period.

What few people know: this decision also applies to sales between non-traders, because the 5-year period under Article L. 110-4 only concerned traders. But the Court of Cassation has unified the regime.

Four Tips to Avoid This Type of Dispute

• Have an expert inspection carried out before purchase: for a property, an inspection by a professional (surveyor) can reveal potential defects. In Capbreton, remember to check the waterproofing of roofs and the condition of foundations.
• Keep all documents: invoices, surveys, photos, correspondence. In the event of a dispute, you will need to prove the date of discovery of the defect.
• Act quickly after discovery: as soon as you notice a serious defect, consult a lawyer lawyer. Do not delay, the 2-year period runs from that discovery.
• When selling, inform the buyer: if you know of a defect, mention it in the sale deed. This protects you against a warranty claim, because the defect becomes apparent.

Further Details: Related Case Law and Developments

This decision confirms a trend initiated by the Court of Cassation. In a judgment of 17 September 2020 (n° 19-13.749), it had already ruled that the 5-year period under Article L. 110-4 was not a limitation period for the action under the warranty against latent defects. The 2022 judgment clarifies the starting point and the 20-year limitation period.

Before the 2008 law, the limitation period was 10 years, and case law tended to consider it as a limitation period. The 2008 reform reduced the period to 5 years, but without clarifying the starting point, leading to divergences. Now, the position is clear.

This trend provides greater protection for the buyer, by extending the seller's exposure period (up to 20 years). But it requires the buyer to act quickly after discovery. In future, courts are likely to be strict on proving the date of discovery of the defect.

Summary and Next Steps

FAQ:

• Question: What is the new period for bringing a claim under the warranty against latent defects?
  Answer: You must act within 2 years from the discovery of the defect, and at most within 20 years from the original sale.
• Question: What if I discovered a defect more than 2 years ago?
  Answer: You are probably time-barred, unless you can prove a more recent discovery. Consult a lawyer.
• Question: Does this decision apply to sales between private individuals?
  Answer: Yes, because the 2-year period under Article 1648 is common to all. The 5-year period under Article L. 110-4 only concerned traders, but the Court has unified the regime.
• Question: Can I take action against my seller if I bought 15 years ago?
  Answer: Yes, if you discover a defect today, you have 2 years to act, because the 20-year limitation period has not been reached.
• Question: What are the most common latent defects in the Landes region?
  Answer: Damp problems, structural cracks, insulation defects. In Capbreton, roof seepage is common.

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