A flat bought in 2016, floors eaten away by wood-boring insects, a dangerous-building procedure opened by the prefecture, then repair works carried out by the co-owners’ syndicate. Can the buyer still claim part of the price from the seller, now that the defect has gone? The Third Civil Chamber of the Cour de cassation (the French supreme court for civil and commercial matters) says yes, in a reported decision of 8 February 2023. Only a repair carried out by the seller and accepted by the buyer extinguishes the action estimatoire. A repair by a third party leaves the whole calculation to be done.
A vice caché (hidden defect) is a defect that was not apparent at the sale and that makes the property unfit for its intended use, or reduces that use so much that the buyer would have paid less (article 1641 of the Civil Code). Article 1644 gives the buyer a choice: return the property and recover the price, or keep it and have part of the price refunded. That second remedy is the action estimatoire, the claim for a reduction of the price.
The facts
By a notarial deed of 9 March 2016, a company sold a flat in a co-owned building to a private individual. On 7 December 2017, the prefecture opened an ordinary dangerous-building procedure (procédure de péril) concerning the building. The buyer found damage to the upper and lower floors of the flat, caused by wood-boring insects. He sued the seller under the hidden-defect warranty for a reduction of the sale price and for damages. The seller joined the co-owners’ syndicate (syndicat des copropriétaires, the legal body formed by all the co-owners of the building) to the proceedings, seeking to be indemnified by it.
The buyer’s claims, as they appear in the appeal, give the measure of the dispute: €2,721 and €1,823.67 for service charge calls, €6,000 in fees incurred in the summary proceedings for the appointment of a court expert, €130,000 for the loss of value of the property and €9,385.10 as a refund of part of the loan interest.
On 15 October 2021, the Paris Court of Appeal dismissed the claim for a partial refund of the price. Since the buyer had agreed to the co-owners’ syndicate carrying out the repair works, he could no longer bring the action estimatoire once the defect had disappeared, “regardless of whether the repair was carried out by the syndicate and not by the seller” (translated from the French).
The decision
The Cour de cassation quashed that judgment on the basis of articles 1641 and 1644 of the Civil Code (Cass. 3e civ., 8 February 2023, appeal no. 22-10.743, reported decision).
It first restated its case law: the buyer of a thing with a hidden defect “who agrees to the seller carrying out the repair can no longer rely on the warranty once the original defect has disappeared” (translated from the French). The buyer, “who alone has the choice between the remedies provided by law”, may accept “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 extinguish 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.”
The quashing on the refund of the price entailed, as a consequence, the annulment of the dismissal of the claims for damages, “which are linked to it by a necessary relationship of dependence”. The case was sent back to the Paris Court of Appeal, differently constituted.
A worked example: the cracked house
A more recent, unreported ruling illustrates how large a price reduction can be. A house sold for €325,000 on 1 October 2007 had old and progressive cracks, at the location of underpinning works carried out in the basement in 1980 by the sellers themselves, without a geotechnical study, and made worse by the 2003 drought and clay soils. Before the sale, the sellers had filled the cracks and rendered the facades. The Paris Court of Appeal set aside the warranty exclusion clause for bad faith and ordered the sellers to pay €202,267.20 as a reduction of the price and €7,800 in damages. The appeal was dismissed (Cass. 3e civ., 7 March 2024, appeal no. 20-17.790). The reduction here represents more than 60 % of the price paid.
What the expert takes from it
The refund of the price has a precise basis. The Cour de cassation defines it: the cost of the works charged to the buyer to remedy the defect. In a co-owned building, that is the share of the fund calls borne by the lot for works on the common parts, plus the works within the private lot. The report reconstructs that cost item by item, from service charge calls, quotes and invoices, and separates what remedies the defect from what improves the property.
Loss of value is a separate head of claim. The €130,000 claimed for loss of value is not the same as the cost of the works. A building that has been through a dangerous-building procedure and an infestation often keeps a discount after repair, which the market measures by comparison with equivalent properties without that history. The expert establishes the market value of the property on the day of the sale, as it really was, then its value after repair, and documents the gap with comparable sales. Market value is defined by the Charte de l’expertise en évaluation immobilière (the French property valuation charter, 6th edition, November 2025, Title III, § 1.1) and by EVS 1 of the European Valuation Standards 2025.
The cost of the works is only one indicator of the loss of value. For the cracked house, the ruling does not detail how the Court of Appeal calculated the figure; the amount awarded, more than 60 % of the price, shows the scale possible when the defect affects the structure. For a less serious defect, the price reduction awarded by the court may be lower than the cost of the works, if the market would not have granted an equivalent discount. The report therefore presents both figures, the cost of repair and the difference in value, and explains why one or the other is relevant (Charte, Title III, chapter 8: no method is universal).
Further reading
The Property loss of value page describes how a hidden defect is quantified, the timescale and the fee. 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 rulings are available on Légifrance: 8 February 2023 and 7 March 2024.
What next
A hidden defect discovered after buying your flat?
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