Latent Defects: Time Limit to Bring Claim is 2 Years from Discovery, but 20-Year Longstop Applies

You have just bought a villa in Vallauris, with a breathtaking view of the Mediterranean. Everything seemed perfect, until a persistent smell of dampness invaded the basement after the first rains. The technical survey revealed nothing, but the walls are oozing. You then discover a latent defect: an old infiltration that the seller had concealed. You are furious, but above all, you wonder: do I still have time to take legal action?

This question is asked by hundreds of property owners every year. Because the law sets very precise time limits for bringing a claim for latent defects (serious defects that render the property unfit for use or diminish its use so much that the buyer would not have bought it, or would have paid less, had they known). The decision of the French Supreme Court of 21 July 2023 (No. 20-10.763) serves as a reminder of these rules, with an important clarification regarding the twenty-year longstop.

In short, this decision confirms that you have two years from the discovery of the defect to bring a claim, but this period can never exceed twenty years from the sale. A detail that can change everything, especially in old cases. Analysis.

The Facts: A Story Like Many Others

Imagine a property developer from Nice, the company Riviera Construction, which buys a plot of land in Vallauris in 1998 to build a block of flats. It sells the units to buyers between 2000 and 2002. In 2006, cracks appear on the facade of one of the buildings. The co-owners alert the management company, but nothing is done. In 2010, a court-ordered expert report is obtained: the defect was latent, it is a foundation defect. The co-owners then sue the developer in 2012, more than ten years after the sales.

The developer, in turn, brings a recourse claim against its own seller (the landowner) and its insurer. The question that arises is this: is the co-owners' claim for latent defects against the developer still admissible, given that more than ten years have passed since the purchase? And what about the developer's claim against its seller?

The lower courts (Court of Appeal of Aix-en-Provence) had declared the co-owners' claim inadmissible, considering that the ten-year limitation period (applicable before the 2008 reform) had expired. The French Supreme Court quashes this judgment. It recalls that, since the Law of 17 June 2008, a claim for latent defects is subject to a limitation period of two years from the discovery of the defect, with a twenty-year longstop from the date of sale. And for sales prior to 2008, this new period applies if the old ten-year period had not expired by 19 June 2008. In other words, the co-owners had until 2022 to bring a claim, since they discovered the defect in 2010. The case is remitted to another court of appeal.

The Court's Reasoning — Analysed

The French Supreme Court relies on two fundamental provisions: Article 1648, paragraph 1 of the Civil Code (which sets the two-year period from the discovery of the defect for bringing a claim for latent defects) and Article 2232 of the same Code (which establishes a twenty-year longstop from the date the right arises, after which no claim can be brought).

But what exactly does this change? Before the 2008 reform, a claim for latent defects was subject to a ten-year limitation period from the sale. The Law of 17 June 2008 reduced this period to two years, but added a twenty-year longstop. For sales concluded before the entry into force of this law (19 June 2008), the new regime applies if the old ten-year period had not yet expired on that date. And account must be taken of the time already elapsed since the sale.

However, be careful: the twenty-year longstop is a limitation period (a maximum period), which does not run from the discovery of the defect, but from the sale. Thus, even if you discover a defect after 19 years, you have two years to bring a claim, but you cannot exceed the twentieth year. For example, if the sale took place on 1 January 2000 and you discover the defect on 1 January 2019, you have until 1 January 2022 to bring a claim (two years after discovery), but in reality, the longstop expires on 1 January 2020 (twenty years after the sale). So you actually only have one year to bring a claim.

What few people know is that this longstop also applies to recourse claims (when the initial seller sues its own seller). In our case, the developer wanted to bring a claim against its seller. The Court specifies that for a recourse claim, the two-year period runs from the date of the claim (summons), but the twenty-year longstop always runs from the date of the sale concluded by the party against whom recourse is sought. In other words, the developer cannot sue its seller if more than twenty years have elapsed since the sale of the land.

What This Means for You — Practically

If you are a buyer of real property (house, flat, commercial premises) and you discover a latent defect, you must bring a claim within two years of that discovery, but never beyond twenty years after the sale. Concretely, if you buy a flat in Nice in 2023 and discover a termite infestation in 2025, you have until 2027 to sue the seller. But if you discover the defect in 2042 (19 years after the sale), you only have until 2043 (20 years after the sale) to bring a claim, i.e. only one year.

For landlord owners, be careful: if you sell a property and the buyer discovers a defect, they can sue you within two years of discovery, even if the sale is old (within the 20-year limit). undefined, I have encountered cases where a seller in good faith had to reimburse thousands of euros for cracks appearing 15 years after the sale, because the buyer only discovered the defect at that time.

As for real estate professionals (developers, builders), know that you can be sued by your buyers long after the sale, but you can also bring a recourse claim against your own sellers within two years of the claim (summons), always within the twenty-year limit from your own purchase. Example with figures: a developer buys a plot of land in Vallauris in 2010, builds and sells the units in 2012. In 2020, defects are discovered by the co-owners, who sue him in 2021. The developer can then sue his seller until 2023 (two years after the claim), but not beyond 2030 (twenty years after his purchase).

Four Tips to Avoid This Type of Dispute

• Arrange for full technical surveys before buying. Do not rely solely on mandatory surveys (asbestos, lead, termites...). For a villa in Vallauris, for example, a damp survey and a search for structural cracks can reveal potential defects. This will allow you either to renegotiate the price or to withdraw from the purchase.
• Keep all documents relating to the sale and surveys. If a defect is discovered later, you will need to prove that the defect existed before the sale and that it was latent. Invoices for previous works, quotes, correspondence with the seller are all evidence.
• Act quickly as soon as a problem is discovered. Do not delay in having the defect assessed by an expert (expert report or court-ordered). The two-year period runs from discovery, but if you wait, you risk losing the benefit of the claim. Send a recorded delivery letter to the seller to inform them and attempt an amicable solution, but without losing sight of the longstop.
• For sellers, provide for clauses limiting the warranty in time. Although the latent defects warranty is a matter of public policy (it cannot be waived in advance), you can include a clause limiting the duration of your liability to a certain number of years (e.g., 5 years). This clause is valid if it is clear and not abusive. This protects you against late claims.

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In-Depth: Related Case Law and Developments

This decision is part of a consistent line of French Supreme Court rulings. Already, in a judgment of 3 November 2016 (No. 15-25.447), the Court had specified that the twenty-year longstop applies to claims for latent defects, and that it runs from the sale. The 2023 judgment confirms this solution, extending it to recourse claims and settling transitional issues for sales prior to 2008.

Another important decision is that of 13 September 2017 (No. 16-20.874), which held that the starting point of the two-year period is the date on which the buyer had certain knowledge of the defect, not mere suspicion. The courts are therefore strict on the evidence of discovery.

The tendency of the courts is to protect the buyer by allowing a reasonable time to act after discovery, while setting an absolute limit to prevent claims that are too late. This means that in the future, disputes will focus mainly on the date of discovery of the defect and on the calculation of the longstop in transitional situations. It is therefore essential to document the chronology of events well.

What You Must Absolutely Remember

Here is a 5-point checklist to know if you can bring a claim:

1. When was the defect discovered? The date of discovery triggers the two-year period.
2. When did the sale take place? The twenty-year longstop runs from the sale.
3. If the sale is before 19 June 2008, check whether the old ten-year period had expired by that date. If so, you are out of time. If not, the new two-year period applies, but taking into account the time already elapsed since the sale.
4. Do you have evidence? Gather surveys, photos, witness statements, expert reports.
5. Who is the seller? If it is a professional, the warranty is easier to enforce. If it is a private individual, they may rely on good faith.

In summary, as soon as you suspect a latent defect, do not wait: consult a solicitor specialising in property law to assess your chances and act within the time limits.

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