A house is sold in 2017. The buyer discovers under the dwelling a waste-water drainage network that the deed did not mention, and that the sellers themselves did not know of. She claims rescission of the sale and damages under the warranty for undeclared charges. The Agen court of appeal dismisses her: the deed stipulates that the buyer takes the property in its current condition and will have “no recourse against the seller for any reason whatsoever, in particular on account of apparent defects or hidden defects”. On 13 February 2025 the Cour de cassation (the French supreme court for civil matters), in a reported decision, quashed: that clause, “specific to the condition of the property”, does not expressly exclude the warranty for non-apparent easements under article 1638 of the Civil Code, which remains owed absent an express clause to the contrary. The same chamber said it again in 2026 for a drinking-water main; the 2025 ruling is the first link, and it spells out what a clause must say to exclude that warranty.
The facts
By authentic deed of 27 April 2015, an owner sells a dwelling house to a couple, as bare owners, and to a third person, as usufructuary. By deed of 4 July 2017, those three sellers resell it to a buyer. The deed contains a clause headed “Condition of the property”: the buyer takes the property in its current condition, as seen and visited, and “will have no recourse against the seller for any reason whatsoever, in particular on account of: apparent defects, hidden defects”.
The buyer discovers, under the dwelling, a waste-water and soil-water drainage network not mentioned in the deed. After a court-ordered expert report, which establishes the presence of the network and the sellers’ ignorance of it, she sues them for rescission of the sale and damages under the warranty for undeclared charges; the sellers in turn claim against their own 2015 vendor. The Agen court of appeal, on 22 March 2023, dismisses the action: the clause applies “for any reason whatsoever” and releases the sellers.
The decision
The third civil chamber quashed, under articles 1638 and 1627 of the Civil Code (Cass. 3e civ., 13 February 2025, no. 23-17.636, reported). Article 1638 allows the buyer of property burdened, without declaration, “with non-apparent easements of such importance that there is reason to presume the buyer would not have bought had he been informed of them” to “request the rescission of the contract, unless he prefers to settle for an indemnity”. That provision “is an application of the general principle laid down in article 1626” on the warranty against eviction, and article 1627 allows the parties to reduce or exclude that warranty by agreement.
“It follows that, absent an express clause to the contrary, the seller is bound by the warranty for non-apparent easements not declared at the sale.” Yet the clause in the deed, “specific to the condition of the property, did not expressly exclude the warranty for undeclared non-apparent easements”. The court of appeal breached the provision. The ruling is quashed in its entirety, including on the claim against the 2015 vendor, and the case is sent back to the Bordeaux court of appeal.
What this changes for valuation
A network under the house is a charge, not a defect. The reasoning that lost before the Court is the one that files every post-purchase discovery under hidden defects. A drainage network running through the basement of a house is not a defect in the thing: it is a right of others over the land, an easement, and article 1638 treats it as a partial eviction. The distinction drives the regime, the time limit and the clause that can exclude it; it also drives what the valuer must quantify. For a hidden defect, one measures the cost of repair and the loss of value linked to the defect; for an easement, one measures the loss of value of a property that will remain burdened, because it cannot be “repaired”.
Quantifying the loss of value. The value of a house crossed by a public or shared waste-water network is compared with that of the same house free of that charge. The difference comes from several elements: the impossibility or cost of building, extending or digging above the network, the access easement for maintenance, the risk of damage in the event of a break, the difficulty of resale and buyers’ reaction to information that must now be disclosed. The valuer describes them one by one, translates them into a percentage of the unburdened value with the available references, and gives the indemnity under article 1638, which is that loss of value, to which the costs incurred may be added. The glossary describes what a moins-value is and how it is reasoned.
Rescission or indemnity: the presumption is quantified. Article 1638 opens rescission where the easement is of such importance that one may presume the buyer would not have bought. That importance is measurable; a loss of value of a few per cent argues for an indemnity, an easement that rules out any extension or makes the house hard to resell argues for rescission. The report gives both elements, the extent of the charge and its effect on the price, and the judge chooses. The guide on contesting the price after purchase describes the available remedies. The Court has also specified, for a public sewer discovered under a plot, that the importance of the easement “is a condition only of the rescission of the sale, and not of compensation for the loss”: an indemnity is owed for any undeclared easement, according to the resulting loss (Cass. 3e civ., 6 July 2023, no. 22-13.179, reported).
The clause is read word for word, and the valuer reads it too. A clause excluding “hidden defects” does not exclude non-apparent easements; only an express clause would. Before quantifying, the valuer notes in the deed the exclusion clauses and what they cover, because the compensable loss depends on it: if the warranty for easements is expressly excluded, the loss of value still exists but nobody answers for it, save bad faith; if it is not, it is quantified. The 2026 ruling on the drinking-water main applies the same reading to a clause excluding the warranty for defects affecting the soil, subsoil and buildings.
The chain of sellers. The 2017 sellers did not know of the network and claimed against their own 2015 vendor. The loss of value established by the valuer will serve at both levels of the dispute: it measures what the buyer can claim and what the intermediate sellers can pass on. A value established at the date of the 2017 sale, with the references of the time, avoids redoing the work at each link.
What the valuer takes from it
- An undeclared drainage network under the house is a non-apparent easement, governed by article 1638, not a hidden defect.
- Absent an express clause to the contrary, the seller warrants the buyer against it; a clause on the condition of the property and defects is not enough to exclude it.
- The indemnity is the loss of value of the burdened property against the unburdened one, reasoned element by element.
- The extent of the loss of value informs the choice between rescission and indemnity.
- The valuer notes the exclusion clauses of the deed before quantifying, because the compensable loss depends on them.
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, vice caché and préjudice immobilier complement this article. On the same theme: Water main under the house: hidden easement, indemnity owed and Non-compliant drainage in France: hidden defect and price refund. The decision is available on Légifrance.
What next
A pipe or a network discovered under your house after the purchase, and a loss to quantify?
I establish the loss of value of the burdened property against the price paid, with the constraints on use, works and resale that the easement entails, in a report usable for an indemnity or a rescission.
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