A case study on the seller's liability for deceit and latent defects in a real estate sale, where the buyers discovered a hypothec on the property and termite infestation despite a clean diagnosis attached to the sales deed.
Extract
[...] By falsifying the diagnosis, the seller committed a manoeuvre dolosive having vitiated the consent of the buyers. The sales contract can therefore be annulled for fraud. II) On the mortgage encumbering the sold property Force Majeure In law, the article 1626 of the Civil Code decree that: 'Although no stipulation was made regarding guarantee during the sale, the seller is legally obliged to guarantee the buyer against eviction from the entirety or part of the sold object, or from the pretended charges on this object, which were not declared during the sale.' This guarantee of'eviction obliges the seller to insure the buyer against the peaceful possession of the property and to the protect against prior undeclared real rights, notably the hypothecs. [...]
[...] This proves that the seller had knowingly replaced or falsified the diagnosis, in order to to conceal the existence of the defect and to deceive the buyers on the actual state of the property. This behavior therefore characterizes a deceit, in the sense of Article 1137 of the Civil Code since there was a lie and intentional concealment, this also characterizes the bad faith of the seller, who knew the flaw. Solution Finally, the buyers contracted under the influence of a error caused on a key feature of the property (the absence of termites), without which they would certainly not have acquired the property. [...]
[...] The buyers can demand that the seller proceeds to the cancellation of the mortgage at his own expense, and, if applicable, repairs the damage suffered if the situation causes them a financial loss or deprivation of enjoyment. In case of inaction by the seller, they will be able to demand the resolution of the sale or of damages and interest. [...]
[...] Six months after their acquisition, they discover several disorders affecting the accommodation, including a defective heating system and a termite infestation damaging the parquet. The professional having previously performed the parasitic diagnosis is contacted after the discovery of the damage by the buyers. Like the diagnosis contained in the sales contract, the professional reveals that his diagnostic initial, mentioned yet the presence of termites, this establishes that the document annexed to the sale would therefore have been falsified by the sellers. [...]
[...] Thus, the seller of bad faith, that is to say, aware of the defect and having sought to conceal it, engages his responsibility. Finally, the article 1137 of the Civil Code defines the pain as: 'The fact that one contracting party obtains the other's consent through tricks or lies ( . The dol is otherwise sanctioned by the nullity of the contract, as provided for in Article 1131 of the Civil Code. Minor In this case, the immovable property purchased presents several vices : the heating is defective and the parquet is infested with termites. [...]
