A flat bought in 2016 turns out to have floors attacked by wood-boring insects; the prefecture opens a dangerous-building procedure concerning the building, and the co-owners’ syndicate has the works carried out, with the buyer’s agreement. With the defect gone, can the buyer still claim part of the price from the seller? In a reported decision of 8 February 2023, the Third Civil Chamber of the Cour de cassation (the French supreme court for civil and commercial matters) says yes. A restoration by the seller at his own expense, accepted by the buyer, extinguishes the action estimatoire (the claim for a reduction of the price) once the defect has disappeared. A repair by a third party does not remove it: the buyer can obtain a refund of the price up to the cost of the works charged to him.
The facts
By a notarial deed of 9 March 2016, a company, the seller, sold a flat in a co-owned building to an individual, the buyer. On 7 December 2017, the prefecture opened an ordinary dangerous-building procedure (procédure de péril ordinaire) concerning the building.
Having found damage to the floor structures above and below the flat, caused by wood-boring insects, the buyer sued the seller under the hidden-defect warranty (garantie des vices cachés), seeking a reduction of the sale price and damages. The seller brought a third-party claim for indemnity (appel en garantie) against the co-owners’ syndicate (syndicat des copropriétaires, the body of all the co-owners). The buyer had agreed to the syndicate carrying out the works to restore the property affected by the defect.
On 15 October 2021, the Paris Court of Appeal dismissed the claim for a refund of part of the price: having accepted those works, the buyer could no longer bring the action estimatoire once the defect had disappeared, “it being irrelevant that the restoration was carried out by the syndicate and not by the seller” (translated from the French). It also dismissed his claims for damages. The buyer appealed to the Cour de cassation.
The decision
The Cour de cassation partly quashed the judgment, on the basis of articles 1641 and 1644 of the Civil Code, insofar as it dismissed the claim for a refund of the price and the claims for damages (Cass. 3e civ., 8 February 2023, appeal no. 22-10.743, reported decision).
It recalled that the buyer of a thing with a hidden defect has the choice “to return the thing and have the price refunded, or to keep the thing and have part of the price returned”.
It then restated its case law, drawn from a decision of the Commercial Chamber of 1 February 2011 (appeal no. 10-11.269): the buyer “who agrees to the seller restoring that property can no longer rely on the warranty claim once the original defect has disappeared”. The buyer, “who alone has the choice between the remedies provided by law”, may indeed agree to the seller carrying out, “by a restoration at his own expense, a repair in kind that removes the defect and restores the contractual balance intended by the parties”.
It then set the limit: “This solution cannot be extended to the repair of the hidden defect by a third party, which, having no effect on the contractual relationship between the buyer and the seller, cannot remove the action estimatoire allowing the buyer to obtain a refund of the price up to the cost of the works charged to him to remedy the defect.” By holding otherwise, the Court of Appeal breached the texts.
Quashing the dismissal of the price refund entailed quashing the dismissal of the claims for damages, “which are linked to it by a necessary relationship of dependence”. The case was sent back, on those points, to the Paris Court of Appeal, differently constituted. The Court set no amount and did not rule on the merits of the damages claims: it is for that court of appeal to examine them. Its reasoning says nothing about the indemnity claim against the syndicate.
What this changes for valuation
The repair does not erase the question of the price. Once the works are done, the property is in the condition the buyer thought he was buying, but he paid for it as a sound property before funding, in whole or in part, its restoration. That extra cost is what the action estimatoire allows him to claim from the seller.
Reconstructing what the buyer paid. In a co-owned building, works led by the syndicate are funded by fund calls spread between the lots according to their shares (tantièmes). The report starts from the documents: minutes of the general meeting, fund calls sent to the lot, invoices, statements of account and, where relevant, works carried out within the private part. It separates what remedies the defect from what improves the property or falls under maintenance, and retains what actually weighed on the buyer, not the overall cost of the project.
Cost of works and loss of value: two figures. Here, the Court linked the refund to the cost of the works. Elsewhere, the price reduction is often measured by the loss of value (moins-value) that the defect caused at the date of the sale, and the two figures can differ widely, as the case discussed in Hidden defect: the cost of works is judged before the price cut illustrates. The report presents both, each with its valuation date.
Who repaired, who paid, who accepted. The line drawn by the decision is factual: the report therefore traces who decided, managed and funded the works, who accepted them, and when. Cracks filled in by the seller before the sale follow a different logic, since they hide the defect instead of repairing it: see Cracks filled before the sale: the seller still owes the warranty.
A residual loss of value is another head of claim. The decision says nothing about a discount that might remain after the works, for example for a building whose history of dangerous-building procedure still weighs on buyers. Under the general rule of article 1645 of the Civil Code, and not under this decision, such a loss would fall under the damages owed by the seller who knew of the defects, and would be proved by comparison with sales of equivalent properties without that history; their extent is set out in Hidden defect known to the seller: market value caps nothing. The report never counts the same loss twice, a double count the Court censured between the price refund and the rebuilding cost.
What the valuer takes from it
- A repair of the defect by a third party, here the co-owners’ syndicate, leaves the action estimatoire open; a restoration by the seller at his own expense, accepted by the buyer, extinguishes it once the defect has disappeared.
- The refund is measured here by the cost of the works charged to the buyer; in a co-owned building, the report reconstructs it from the documents (the lot’s share of the fund calls, works within the private part).
- The report separates what remedies the defect from what improves the property.
- A loss of value remaining after the works is a separate head, proved by comparison and without double counting.
Further reading
The Property loss of value page describes the assignment, its timescale and its fee. The guide I paid too much: can I challenge the price? and the glossary entries vice caché, moins-value and préjudice immobilier complement this article. A related decision, discussed separately: Cracks filled before the sale: the seller still owes the warranty. On the same theme: Non-compliant drainage in France: hidden defect and price refund and Damp wall after buying in France: does the price reflect it?. The decision is available on Légifrance.
What next
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