The seller may have to pay for a defect finally repaired

The buyer of an apartment with a hidden defect obtained this advantageous decision from the Court of Cassation by claiming compensation from the seller while the defect, linked to the common areas, was repaired by the syndicate of co-owners.

The question of the guarantee of a latent defect only concerns the relationship between buyer and seller, observed the Court of Cassation.

She therefore won her case to this buyer who, at the same time, demanded a price reduction from his seller and accepted the offer of the syndicate of co-owners to carry out the necessary repairs.

After buying an apartment, the new owner noticed that the floors were eaten away by xylophagous insects and presented a danger. The situation met the definition of latent defect in that it rendered the good unfit for use to the point that, if he had known, the purchaser would not have purchased or would only have offered a lower price. .

Having then the choice between the cancellation of the sale or the reduction of the price, the buyer had opted for the reduction of the price which he claimed from the seller. This seller, invoking the law which organizes the co-ownership, recalled that the floors are common areas and that it is up to the syndicate of co-owners to maintain and repair them. He had therefore obtained that the condominium carry out urgent work. From then on, he said, the defect has disappeared, the buyer is satisfied and no longer has any reason to ask for a price reduction.

But the judges rejected this solution. It is the seller who is required to guarantee the absence of hidden defects. Since there are some, he must respond to the purchaser's request without being able to invoke the work carried out by the co-ownership. Because the work carried out by a third party does not affect the contractual relationship between buyer and seller. The latter must therefore always answer for the hidden defect as if it existed.

In February 2011, the Court had explained that, on the other hand, the buyer who would have obtained from the seller a remedy for the defects could no longer claim anything.

(Cass. Civil 3, 8.2.2023, H 22-10.743).