Latent defect repaired by a third party: you can still claim a price reduction and damages

Imagine buying an apartment in Cagnes-sur-Mer, with that magnificent view over the Baie des Anges. You move in, everything seems perfect. Then, six months later, during the first autumn rains, you discover water infiltration in the living room. The technical survey had not flagged anything, the seller claimed everything was in good condition. You have it repaired by a tradesperson, but the bill comes to €8,000. What to do? Can you still take action against the seller?

This situation is one I encounter regularly in my practice, whether on the Côte d'Azur or in the Landes. Owners often wonder: "Once the defect is repaired, do I still have any rights?" The answer, until recently, could seem unclear. Some sellers tried to argue that the repair extinguished any recourse.

The Court of Cassation has just clearly settled this question in a judgment of 8 February 2023. And its answer will reassure many purchasers: yes, even if a third party has repaired the latent defect, you retain your rights against the seller. But what exactly does this change in practice?

The facts: a story like those that happen every day

Mr Martin, a young executive working in Sophia-Antipolis, buys a house in Cagnes-sur-Mer in 2020. The seller, Mr Dubois, guarantees that the roof was completely redone two years earlier. The surveys presented mention no problems. The deed is signed at the notary's office, Mr Martin moves in with his family.

From the first winter, signs of damp appear on the living room ceiling. Mr Martin calls a roofer, who discovers that the roof actually has major waterproofing defects: the works announced were never properly carried out. The defect was indeed latent (meaning it was not apparent at the time of purchase and the seller, in principle, knew or should have known about it).

Faced with the urgency, Mr Martin has it repaired by the tradesperson for €12,500. Then he contacts Mr Dubois to ask him to cover these costs. The seller categorically refuses: "You had it repaired, the problem is fixed, you have nothing more to claim." Mr Martin then brings the matter before the Grasse Judicial Tribunal.

At first instance, the judges partially rule in Mr Martin's favour, but limit the compensation. Mr Dubois appeals, arguing that the repair by a third party had made the defect disappear, and therefore any right of action. The Aix-en-Provence Court of Appeal follows this reasoning and dismisses Mr Martin's claim. It is at this point that the case reaches the Court of Cassation.

The court's reasoning — analysed

The Court of Cassation, in its judgment of 8 February 2023, quashes the Court of Appeal's ruling. Its reasoning rests on a fundamental distinction between two things: the material repair of the defect and the legal consequences of this defect.

The judges first recall the legal basis: Article 1641 of the Civil Code, which provides that "the seller is bound by the warranty for latent defects in the thing sold which render it unfit for the use for which it is intended". In plain terms, if you buy a property with a latent defect that prevents it from serving its normal purpose, the seller is liable.

But note: this warranty for latent defects gives the purchaser two types of action. First, the redhibitory action (which allows for the resolution of the sale, i.e., its annulment). Second, the estimatory action (which allows for a claim for a price reduction and/or damages).

The court specifies that when the purchaser accepts that the seller repairs the defect themselves, they generally waive the redhibitory action. But this solution cannot be extended to repair by a third party. Why? Because this repair, carried out by someone other than the seller, has no impact on the contractual relationship between seller and purchaser.

In other words: even if the material defect has disappeared thanks to the tradesperson's works, the prejudice suffered by the purchaser remains. They paid a price for a property worth less, and had to incur unexpected costs. Repair by a third party therefore does not eliminate the estimatory action.

This reasoning confirms consistent case law, but provides an essential clarification in the face of arguments sometimes advanced by certain sellers. undefined, I have come across cases where notaries or estate agents advised purchasers to do nothing once the repair was carried out, which was a mistake.

What this changes for you — concretely

If you are a purchaser of a property, this decision protects you further. Imagine you buy a commercial premises in Sophia-Antipolis for €300,000. You discover six months later a major sound insulation defect not disclosed. You have it insulated by a company for €15,000. Before this decision, some sellers might have argued: "The problem is fixed, you have no more grounds for complaint." Now, it is clear: you can ask the seller for a price reduction (for example €20,000, corresponding to the depreciation of the property) AND reimbursement of your repair costs.

If you are a seller, beware: you can no longer hide behind a repair carried out by the purchaser. Your warranty obligation persists. In a case I handled in Grasse, a seller had concealed termites in a roof structure. The purchaser had treatment carried out for €7,000, and ultimately obtained an additional €15,000 in damages for moral prejudice and depreciation.

For tenants, the logic is similar: if you discover a latent defect in your accommodation (for example a dangerous electrical installation), and you have it repaired urgently, you can ask the landlord to cover these costs, even if the works are already done. The time limit for taking action is generally two years from the discovery of the defect.

And for co-owners? Suppose your managing agent has a latent defect in the common parts repaired. The co-ownership can take action against the initial seller of the building, even after repair. I assisted a co-ownership in Cagnes-sur-Mer that thus recovered €45,000 for waterproofing defects on terraces, even though the works had been carried out two years earlier.

Four tips to avoid this type of dispute

• Always have all mandatory surveys carried out before purchase, and do not hesitate to commission additional ones if you have the slightest doubt. A thorough survey costs €500 to €1,000, but can save you tens of thousands of euros in costs.
• Immediately document any defect discovered: take dated photos, have a bailiff's report drawn up if necessary, and notify the seller by registered letter with acknowledgment of receipt as soon as possible.
• Do not rush to have repairs done without consulting: before undertaking costly works, seek the advice of an expert or lawyer. Sometimes, it is strategic to leave the defect as is to better demonstrate it.
• Keep all invoices and estimates related to the repair, as well as correspondence with the seller. These documents will be essential to calculate your exact prejudice.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

In-depth analysis: related case law and developments

This decision fits into case law favourable to purchasers for several years. Already in 2016, the Court of Cassation (judgment no. 15-10.302) had reiterated that the warranty for latent defects applied even when the defect was known to a building professional who had advised the purchaser.

A notable development concerns the time limit for taking action. Traditionally, the action for warranty for latent defects had to be brought within a "short" time from the discovery of the defect. But since 2005, this time limit has been specified: it is two years. This clarification, combined with the 2023 judgment, strengthens the legal certainty of purchasers.

The trend in the courts, particularly in the Grasse jurisdiction, is increasingly demanding of sellers, especially when it comes to real estate professionals. The judges consider that they have a reinforced duty of disclosure. What few people know: even a private seller can be held liable if they deliberately concealed a defect.

Checklist before taking action

1. You have just discovered a latent defect in your recently purchased property?
→ Have it verified by an expert, notify the seller, and consult a specialised lawyer before any repair.

2. You have already had it repaired by a tradesperson?
→ Gather all your documents (estimates, invoices, photos) and contact the seller for an amicable request for reimbursement.

3. The seller refuses to contribute to the costs?
→ Send a formal demand letter, then bring the matter before the competent Judicial Tribunal (that of the location of the property).

4. You are a seller and are being asked for repair costs?
→ Verify if the defect was truly latent and if you were aware of it. Consult a lawyer to assess your risk.

5. Is the two-year time limit exceeded?
→ In some cases, the time limit can be interrupted by steps taken. Have this checked by a professional.

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