Three reported rulings of the Third Civil Chamber, handed down in 2016, determine the loss of the buyer of a building whose asbestos survey or termite report (état parasitaire) proves wrong. The courts of appeal had reasoned in terms of a lost chance to negotiate the price, refused the extra cost of asbestos removal on the ground that this cost is borne by the owner, or limited the award to the cost of treatment. The Cour de cassation (the French supreme court for civil matters) quashed in all three cases: the survey “guarantees the buyer against the risk” it covers, and the losses linked to an unreported presence “are certain in nature”. For the valuer, the basis of the calculation is the real cost of the works, not a fraction of a hypothetical discount.
The facts
The building under a finance lease. By notarial deed of 23 May 2006, a company sells a building to a finance lessor, another company being the finance lessee. The seller had asbestos removal carried out between the preliminary agreement and the deed; in a report of 21 March 2006, the surveyor (diagnostiqueur, the certified technician who prepares the statutory pre-sale reports) had concluded that there was no asbestos. The lessee’s works reveal some at the end of 2006. The lessee sues the seller, the surveyor and his insurer under the hidden defects warranty (garantie des vices cachés). The Versailles court of appeal, on 9 October 2014, releases the seller, protected by the exclusion clause between professionals of the same speciality, and orders the surveyor and his insurer to pay €64,000: the loss “can only be analysed as a lost chance” to negotiate a price reduction, put at 90 %.
The buildings to be demolished. Before selling buildings, the owner has a technical inspection company search for asbestos; it delivers two reports on 20 May 2003. The buildings pass to a developer, then to an SCI (société civile immobilière, a French property-holding company) on 20 April 2004, which resells them off plan on 12 May 2004. The demolition undertaken by that SCI reveals additional asbestos that the reports did not mention; it claims the extra cost of asbestos removal from the inspection company. The Aix-en-Provence court of appeal, on 6 November 2014, dismisses the claim: the inspection company “is not liable for the presence of asbestos but only for negligent failures in detecting it”, and the loss “cannot therefore correspond to the cost of asbestos removal, which is borne by the owner”.
The infested building. A buyer purchases from two sellers a building in commercial and residential use. The termite report notes signs of termite infestation, without the presence of insects. Termites having been discovered after the sale, she sues the sellers under the hidden defects warranty and the surveyor for damages. The Poitiers court of appeal, on 24 April 2015, releases the sellers, protected by the exclusion clause for lack of proof that they knew of the actual presence of the insects, and limits the award against the surveyor to €5,019.25, the cost of treatment: the termite report being fairly alarming, in an area declared contaminated by prefectoral order, it is not established that the buyer “would have given up her purchase or asked for a lower price had she been informed of the actual presence of the insects”.
The decision
First ruling (Cass. 3e civ., 30 June 2016, no. 14-28.839, reported). On the exclusion clause, dismissed: having found a sale between two professionals of the same speciality and no proof that the seller knew of the defect, the court of appeal “could deduce that the clause excluding the hidden defects warranty stipulated in the deed of sale had to be applied”. On the surveyor, quashed under article L. 271-4 of the Construction and Housing Code: the technical diagnosis file “guarantees the buyer against the risk” it covers, and “the surveyor’s liability is engaged where the survey was not carried out in accordance with the prescribed standards and the rules of the art, and proves wrong”. Partial quashing, remitted to the same court differently composed.
Second ruling (Cass. 3e civ., 19 May 2016, no. 15-12.408, reported). Under article 10-1 of decree no. 96-97 of 7 February 1996 and article L. 1334-7 of the Public Health Code, then applicable, the asbestos report produced at the promise of sale “guarantees the buyer against the risk of asbestos”. The court of appeal, which had found “liability in design and in performance” on the part of the inspection company, “did not draw the legal consequences of its findings as to the certainty of the loss suffered by the SCI through the extra cost of asbestos removal”. Full quashing and remittal.
Third ruling (Cass. 3e civ., 8 December 2016, no. 15-20.497, reported). On the sellers, dismissed: “nothing showed that the sellers knew, before the sale, of the actual presence of termites, which a professional had failed to detect”, and the exclusion clause applies. On the surveyor, quashed under article L. 271-4: “the losses linked to the presence of termites not mentioned in the certificate intended to inform the buyer are certain in nature”. Quashing on that point, remitted to the Bordeaux court of appeal.
What this changes for valuation
The loss is certain; the basis is the cost of the works. A lost chance assumes that a better-informed buyer might have obtained a discount; the award is only a fraction of it, 90 % in the first case. The three rulings reject those lines of reasoning: the survey guarantees the buyer against the risk and, where it did not comply with the standards and the rules of the art and proves wrong, the loss is what the unreported presence costs, with no detour through a hypothetical negotiation. For asbestos, that is the removal or its extra cost. For termites, it is the treatment and, since the Court censures the limitation to that cost alone, the other consequences of the infestation, such as the repair of the affected timber. Each head must still be proved; an uncertain gain, such as a missed resale, still falls under the requirement of a certain lost chance, recalled in the article on the sale annulled for noise.
The difference with the DPE. In its wording applicable to sales before 1 July 2021, article L. 271-4 gave the energy performance certificate (DPE, diagnostic de performance énergétique) informative value only; the Court deduced from this, in 2019 and again on 17 October 2024, that an incorrect DPE only cost the buyer a chance to negotiate the price, as explained in the article on the incorrect energy certificate and the lost chance to negotiate. The two lines complement each other: the statute guarantees the buyer against asbestos and termites, whereas it merely informed the buyer about energy; the more recent 2024 ruling is consistent with those of 2016 in distinguishing the DPE from the other documents in the file. For sales after 1 July 2021, when the DPE became opposable (a document the buyer can rely on in law), the question remains open.
The surveyor is liable even where the seller owes nothing. In two of the three cases the seller escapes the warranty, between professionals of the same speciality as well as in favour of sellers whose knowledge of the defect was not proved; in the second, the SCI, a sub-purchaser, sued only the inspection company. In the first case, the presumption that a professional seller knows the defect, recalled in the article on the seller who knew of the defect, is not enough to set aside the exclusion clause agreed between professionals of the same speciality: the buyer must prove that the seller knew of the defect. The claim shifts to the surveyor, as in 2026 for the loi Carrez measurement (the statutory floor area of a co-owned unit), in the article on missing floor area; the debtor changes, and so does the measure: the surveyor does not refund part of the price, he makes good the certain loss caused by his error.
What the report quantifies. Three heads, kept separate. The cost of the works made necessary, taken from quotes or from the technical expert’s report, stating the date of the costing: asbestos removal, treatment, replacement of the affected timber. The extra cost, where part of the risk was reported: the difference between the foreseeable cost and the real cost, the only amount attributable to the error. The loss of value remaining after the works, if the market still discounts a treated building, established by comparison with sound properties. The survey is not part of my assignment: I collect it among the documents of the valuation (Charte de l’expertise en évaluation immobilière, the French property valuation charter, 6th edition, November 2025, Title II, chapter 10) and draw its consequences in value. The article on preferring a quote to a flat-rate deduction says why a quantified cost carries more weight than a percentage before the judge.
What the valuer takes from it
- For asbestos and termites, the survey guarantees the buyer against the risk; where it did not comply with the standards and the rules of the art and proves wrong, the loss is certain: cost of the works or extra cost of asbestos removal.
- For the DPE in sales before 1 July 2021, which the statute then distinguished from the other documents in the file by its merely informative value, the Court held that the buyer lost a chance to negotiate (2019 and 2024 rulings); for more recent sales, where the buyer can rely on it in law, the question remains open.
- Between professionals of the same speciality, the exclusion clause applies if the buyer does not prove that the seller knew of the defect; the claim shifts to the surveyor.
- I quantify separately the cost of the works, the extra cost attributable to the error and the residual loss of value, from quotes and dated comparables, without a flat-rate percentage.
Further reading
The Property loss of value page describes the assignment, its timescale and its fee. The guide I paid too much for my French house: can I challenge the price? and the glossary entries vice caché, moins-value and préjudice immobilier complement this article. On the same theme: Incorrect energy certificate: lost chance to negotiate the price and Missing floor area in France: who can claim, and from whom. The decisions are available on Légifrance: no. 14-28.839, no. 15-12.408 and no. 15-20.497.
What next
An asbestos or termite survey that proved wrong after the purchase, and works to pay for?
I quantify the cost of the works made necessary, the extra cost compared with what was announced and the loss of value remaining after repair, from quotes and the technical report, for your lawyer or the court.
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