Reference decision: cc • N° 72-11.416 • 1973-05-03 • View the decision →
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A 1973 judgment of the Court of Cassation recalls that only the trial judges can decide whether a heating defect is a hidden defect. This decision protects owners against abusive claims, but requires proving the seriousness and pre-existence of the defect.
Legal information
- Number: 72-11.416
- Court: Cour de cassation
Source
Read the full decision →Keywords
vice cachéchauffagegarantieCour de cassationdroit immobilier
Practical use cases
1
Owner in Mimizan: defective boiler 3 months after purchase
Mr. Dupont buys a house in Mimizan in July 2022. In October, his boiler breaks down. The expert finds internal corrosion dating from before the sale. The seller refuses to cover the €4,500 repair cost.
Practical application:
Mr. Dupont can claim under the warranty against hidden defects. He must bring the case to the judicial court within 2 years of discovering the defect. The judges will sovereignly assess whether the defect is a hidden defect (pre-existence, seriousness, concealment). Here, the internal corrosion is hidden and serious, so likely to be upheld. The seller will have to reimburse the repair or cancel the sale.
2
Tenant in Parentis-en-Born: heating that does not heat enough
Mrs. Martin rents a flat in Parentis-en-Born. The electric heating never rises above 16°C in winter, despite adjustments. The landlord claims this is normal.
Practical application:
The tenant can invoke non-conformity (Article 1719 of the Civil Code) and hidden defect if the problem existed before the tenancy. She must formally notify the landlord to repair. If nothing changes, she can apply to the judge of protection litigation. The judge will assess whether the defect is a hidden defect or a mere inconvenience. Here, the inability to heat properly is likely a hidden defect.
3
Purchaser of a building in co-ownership: communal boiler breakdown
Mr. and Mrs. Leroy buy a flat in a co-ownership in Mont-de-Marsan. A year later, the communal boiler breaks down. The technical report at the time of sale did not mention any problem.
Practical application:
They can claim against the seller for hidden defect if the defect was pre-existing and hidden. However, caution: in co-ownership, the boiler is a common part. They may also claim against the managing agent for failure to inform. The judges will sovereignly assess whether the defect is a hidden defect. Here, a sudden breakdown without warning signs may be a hidden defect if expert evidence shows prior abnormal wear.
About the author
Maître Cécile Zakine — Lawyer at the Alpes-Maritimes Bar, Doctor of Law. Every article in this magazine is based on the analysis of a real court decision, commented and put into perspective by Maître Zakine’s team.
Book an appointment →Disclaimer: The analysis presented on this site is for informational purposes only and does not constitute personalised legal advice. For advice tailored to your situation, contact a qualified lawyer.
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