A company buys a Provençal country house (bastide) in 2015. It then discovers rising damp and, under its land, a public drinking-water main supplying the whole commune, of which the deed of sale says nothing in its paragraph on easements. The Nîmes Court of Appeal holds the sellers liable for the hidden defect and, with the notary, for the concealed easement. On 8 January 2026 the Cour de cassation (the French supreme court for civil matters) approved the classification as a hidden easement and the resulting indemnity, but quashed on two points: the clause excluding the hidden defects warranty did cover the soil, subsoil and buildings, and the notary does not answer for a warranty the sellers themselves owe. For the valuer, the ruling is a reminder that an easement has a price, and that this price is quantified separately.
The facts
By notarial deed of 27 June 2015 two sellers transfer to a property company a dwelling house, a bastide. The buyer complains of defects, rising damp on the walls caused by the building’s construction method, and discovers that a drinking-water main supplying the whole commune runs, buried, under the property. Neither the preliminary contract nor the deed mentions it in the easements paragraph. Only a copy of a 2006 planning permission, annexed to the deed in a paragraph on works and building insurance, carries a footnote that “the applicant’s attention is drawn to the presence of a public drinking-water main crossing the land”.
The Nîmes Court of Appeal, on 23 November 2023, orders the sellers to pay 71,980.40 € under the hidden defects warranty for the damp and, jointly with the notary, 30,000 € for concealment of the water-main easement. It sets aside the clause excluding the hidden defects warranty, which it reads as limited to defects connected with the listed technical surveys.
The decision
The third civil chamber (Cass. 3e civ., 8 January 2026, no. 24-11.599) rules in three steps.
On the easement, it dismisses the sellers’ appeal. The Court of Appeal found, within its sovereign power, “that no element of the expert report showed the easement to be apparent, since it could not be inferred from the mere presence of inspection chambers on the property”, and that this administrative easement “could not be regarded as a normal burden arising from the nature or situation of the property, given the constraint created for owners thus exposed to the presence of a water network, a hidden burden encumbering the land and necessarily reducing enjoyment of the property”. The footnote in an annexed permit, “unrelated to the existence of an easement, was not such as to establish that the buyers had been informed”. The indemnity of article 1638 of the Civil Code is owed.
On the exclusion clause, it quashes for distortion: the deed stipulated, in the “charges and conditions” paragraph, that “the seller shall not be bound by the warranty against hidden defects that may affect the soil, the subsoil or the buildings”; by reducing it to the surveys, the Court of Appeal disregarded “the clear and precise terms of that deed”. The 71,980.40 € award falls.
On the notary, it quashes too: “performance of the warranty provided by article 1638 of the Civil Code, a consequence of the undertaking freely entered into by the parties to the contract, does not in itself constitute a compensable loss”, and “the notary’s liability could be engaged only in the event of default by the party owing the warranty”. Remittal to the Montpellier Court of Appeal.
What this changes for valuation
A hidden easement has a price. Article 1638 gives the buyer, where the land is burdened by a non-apparent, undeclared easement of such importance that he would not have bought had he known of it, the choice between rescission and an indemnity. That indemnity is a loss of value: the difference between the value of the property as presented and its value burdened by the easement, at the date of sale. For a public water main, the valuer measures the strip under which nothing is built, no trees are planted and no pool is sited, the network operator’s right of access for maintenance, the risk of leaks and works, and the nuisance this creates on pleasure grounds. He compares with sales of burdened and unburdened properties, or applies a reasoned discount to the value of the affected land. The 30,000 € retained here on a bastide gives the order of magnitude of a real constraint on a limited part of the land.
Apparent or hidden: what a visit shows. Inspection chambers do not reveal a communal supply main; nor do valves, according to the Court of Appeal. For a valuer inspecting a property before a sale, the question is settled by documents: network plans requested from the water service, the annexes of the local plan on public utility easements, earlier titles that mentioned the main, as the 2006 deed did here. An easement known to the notary from a previous deed and absent from the new one is exactly the case the ruling describes.
The exclusion clause is read word for word. Between non-professional sellers, a clause excluding the warranty for defects affecting the soil, subsoil and buildings is valid and covers the damp of a bastide, unless the sellers knew of the defect, which the court of remittal will examine. The valuer nonetheless quantifies the loss of value from the damp and the cost of works, because the debate on knowledge of the defect, visible rising damp or not, masking works, depends on it, and because the judge must have the figure if the clause is set aside.
Two heads, two reports. The damp falls under the hidden defects warranty, with its own rules, the exclusion clause, the two-year limit, the seller’s knowledge. The water main falls under the warranty against easements, with no exclusion clause here and no special time limit under article 1648. The valuation report presents them separately, with a loss of value for each, and does not add up heads of a different nature without saying so.
The notary is not the seller’s guarantor. The indemnity of article 1638 is owed by the sellers; the notary who omitted the easement does not owe it in their place, and answers only if the sellers default. For the buyer, this directs the claim; for the valuer, it does not change the figure, but it explains why the loss of value must be established against the sellers first.
What the valuer takes from it
- A buried public main, not declared in the deed, is a hidden easement; the buyer is entitled to an indemnity equal to the loss of value it causes.
- The loss of value is measured by the footprint, the building and use constraints, the operator’s access and the risk, with market references.
- Before a sale, network plans and earlier titles reveal what inspection chambers do not show.
- A clause excluding defects of the soil, subsoil and buildings is read as it stands; it yields only to the seller’s knowledge of the defect.
- The report separates the hidden defects head from the easement head, each with its own loss of value.
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 moins-value and vice caché complement this article. On the same theme: Damp wall: does the price reflect the defect? and Right of way for a landlocked plot: one indemnity per dominant estate. The decision is available on Légifrance.
What next
An easement discovered after purchase, and a loss of value to establish?
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