Latent Defects: Time Limit to Act is 2 Years After Discovery, 20 Years Max

Imagine: you have just bought a house in Mont-de-Marsan, keys in hand, the joy of being a homeowner. But a few months later, a persistent damp smell, cracks widening. The property survey revealed nothing. You discover a latent defect (a serious flaw that makes the property unfit for use or so reduces its value that you would not have bought it, or not at that price). You are angry, you want to sue the seller. But how long do you have to do so? Every homeowner asks this question. The answer lies in a decision of the French Supreme Court of 8 December 2021 (No. 20-21.439): an action for latent defects must be brought within two years of discovering the defect, and cannot exceed twenty years from the sale. This ultimate time limit puts an end to much uncertainty.

The Facts: A Story That Happens Every Day

Mr X, a homeowner in Dax, buys a residential house in 2010. In 2015, he notices recurring water infiltration and structural damage. He calls in an expert who concludes there is a latent defect: the roof was defective from construction, not apparent at the time of sale. Mr X sues the seller in 2016, one year after discovering the defect. The seller argues that the claim is time-barred because the sale took place more than six years earlier. The Court of Appeal rules in favour of the seller, holding that the claim is barred by the general five-year limitation period (Article 2224 of the Civil Code). Mr X appeals to the Supreme Court. The Supreme Court quashes the appeal judgment: it reiterates that an action for latent defects has a special two-year period from discovery of the defect, and a final twenty-year limit from the sale (Articles 1648(1) and 2232 of the Civil Code). Here, the defect was discovered in 2015, the action brought in 2016, i.e. within two years; and the 2010 sale had not exceeded twenty years by 2016. The action was therefore admissible. The case is remanded to another Court of Appeal.

The Court's Reasoning — Analysed

The Supreme Court relies on two provisions. First, Article 1648(1) of the Civil Code (which provides that an action for latent defects must be brought within two years of discovering the defect). Second, Article 2232 of the same Code (which sets a final twenty-year limit for contractual liability actions, running from the date the right arises). In essence, the legislature aimed for a balance: to give the buyer a reasonable time to act after discovering the defect, while also preventing the seller from being indefinitely troubled. In other words, the starting point for the two-year period is not the sale, but the day the buyer became aware of the defect. What few people know is that the Supreme Court already affirmed this principle in a judgment of 22 February 2017 (No. 15-26.105). Here, it reaffirms it forcefully. However, note that the twenty-year final limit runs from the sale, not from discovery. So if a defect is discovered after nineteen years, the buyer has only one year to act. The Court rejects the seller's argument that the general five-year limitation period (Article 2224) should apply. Indeed, Article 1648 is a special rule that prevails. Lower courts must therefore verify the date of discovery of the defect and the date of the claim. In this case, the Court of Appeal erred by not considering the date of discovery.

What This Means for You — Practically

Concretely, if you are a buyer of a property in Mont-de-Marsan or elsewhere, and you discover a latent defect, you have two years to bring legal proceedings from that discovery. But note: this period is capped at twenty years from the sale. For example, if you buy a house in 2010 and discover a defect in 2029, you have until 2030 to act, because the twenty-year final limit expires in 2030. If you discover the defect in 2031, you are too late. If you are a seller, this decision protects you: after twenty years, you are definitively safe from an action for latent defects. undefined, I have seen cases where sellers were sued more than ten years after the sale. Now, the twenty-year final limit secures old transactions. For tenants, note that the latent defect warranty does not directly concern you (it binds seller and buyer), but if you suffer from a defect, you can act against the landlord on the basis of the obligation to deliver decent housing. However, the time limit is different. In summary: remember the number 2 (years after discovery) and the number 20 (years after sale).

Four Tips to Avoid This Type of Dispute

• Get comprehensive surveys before buying: in Mont-de-Marsan as in Dax, do not rely solely on the mandatory technical survey. Hire an independent expert to inspect the structure, roof, dampness. It will cost you a few hundred euros, but save you thousands in repairs and litigation.
• Keep all documents from the sale: sale deed, surveys, correspondence. In case of a defect, you will need to prove the date of discovery. A maintenance log, dated photos, an expert report are your best allies.
• Act promptly at the first signs: if you notice an anomaly (crack, infiltration, suspicious noise), do not delay. Have it recorded by a bailiff or expert and, if necessary, sue within two years. Every month that passes reduces your chances.
• If in doubt, consult a lawyer lawyer: latent defect law is technical. An initial 30-minute consultation with a lawyer (such as Maître Zakine) can clarify your rights and the deadlines to meet. Better safe than sorry.

Further Reading: Related Case Law and Developments

This decision is part of consistent case law. Already in 2017, the Supreme Court (No. 15-26.105) ruled that the two-year period runs from discovery of the defect, not from the sale. In 2019 (No. 18-17.247), it specified that this period is a limitation period (a final deadline that cannot be interrupted or suspended, unlike prescription). The trend is therefore towards securing time limits. Judges want to avoid actions being brought decades after the sale, while protecting the buyer who discovers a defect late. However, note: the two-year period can be interrupted by legal proceedings, but the twenty-year final limit is absolute. This means that even if you have started proceedings within two years, if the sale dates back more than twenty years, your action will be inadmissible. A crucial point for old buildings.

What You Absolutely Must Remember

Here are answers to the most frequent questions I receive in my practice in Mont-de-Marsan:

• What is the time limit to sue for latent defects? You must bring a claim within two years of discovering the defect, and at the latest within twenty years after the sale.
• How to prove the date of discovery of the defect? By any means: expert report, bailiff's report, registered letters, time-stamped photos. The sooner you act, the better.
• What if the seller refuses to acknowledge the defect? File a claim with the judicial court. A court-appointed expert will be assigned to assess the defect. You can obtain a price reduction or damages.
• Can I sue if I have sold the property? Yes, if you are the original buyer and have suffered loss. But you must have brought the action before resale.
• Does the two-year period also apply to professional sellers? Yes, the same period applies. However, professionals are often subject to a strict liability, making it easier to prove the defect.

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