Since 1997 the use of asbestos in properties in France has been forbidden.
Nevertheless, prior to the 1970s its use was widespread, and asbestos is still present in many homes.
In 2007, for properties built prior to 1997, a survey for asbestos became a mandatory as part of the Dossier de Diagnostic Technique (DDT) statutory surveys and reports that must be provided to every buyer.
Nevertheless, there are regularly legal cases concerning asbestos for sales that took place prior to 2007, or for later sales when the professional liability of the survey technician is brought into question.
In a case that was recently heard in the French Supreme Court, the Cour de Cassation, a couple sought compensation against the seller for asbestos found in the roofspace, used as part of insulation works.
The couple brought the action on the basis that the presence of asbestos was a hidden/latent defect (vice caché), which they claimed the sellers deliberately withheld from them.
The law on hidden defects is covered by Article 1641 of the civil code which states: "le vendeur est tenu de la garantie à raison des vices cachés de la chose vendue qui la rendent impropre à l’usage auquel on la destine, ou qui diminue tellement cet usage, que l’acheteur ne l’aurait pas acquise, ou n’en aurait donné qu’un moindre prix, s’il les avait connus."
The sale took place prior to requirement for an asbestos survey came into force, but they had only recently discovered the problem during conversion works being undertaken in the attic.
The sellers contested their liability on the basis that their liability to hidden defects was waived in the deed of sale, and that the presence of asbestos alone did not constitute a latent defect since it did not prevent the use of the property and did not present a danger.
A court appointed expert confirmed the presence of asbestos, but their report stated that the alleged defect did not render the property unfit for use as the asbestos was covered by insulation. This meant it had not been visible to the buyer.
The court considered that the sellers were aware of the presence of asbestos at the time of the sale and that, consequently, the waiver clause was not enforceable against the buyers. In other words, that they showed bad faith in not bringing it to the attention of the buyers, particularly as the works had been carried out several years earlier by a contractor engaged by the seller.
In the view of the judges, although the defect did not render the house unfit for use, it significantly reduced its use, since work affecting the attic or the roof could not be undertaken without asbestos removal work being undertaken.
The judges therefore concluded that the house was affected by a latent defect at the time of the sale, which reduced its use to such an extent that, had they known about it, the buyers would only have paid a lower price.
The plaintiffs were awarded damages of €33,000, based on an estimated reduction in the value of the property of 17.5%.
As we have pointed out in previous articles, the case illustrates the importance of a seller providing full information to a buyer about the condition of the property.
Related Reading:
