A seller has been condemned to pay damages after selling a house with no mains drainage.

In a recent case in the French Supreme Court, the Cour de Cassation, a couple brought a legal action against a seller who falsely claimed the property had mains drainage, when it was only connected to a septic tank located in the garden.

The discovery was only made when the couple moved into the property.

The acte de vente stated quite expressly that the property was connected to the réseau public d'assainissement.

The house was also located in an area of the commune where there was a requirement on all households to be connected to the mains system.

The buyers initially sued the sellers on the grounds that they had been sold something other than that described, an action that was initially accepted by the lower courts.

However, in the final judgement, the Cour de Cassation considered that the absence of mains drainage was a vice caché (hidden defect), which, by definition, rendered the property unsuitable for use.

The difference between the two types of action is sometimes difficult to establish, but the significant point is that there is a statute of limitations of 5 years on misrepresentation, whereas it is two years in relation to the garantie des vices cachés.

The couple were awarded damages for the costs of connecting to the mains drains, for the cost of emptying the septic tank, and compensatory damages for the prejudice caused.

Comment: Perhaps the most important point arising out of this case is less the basis on which the buyers won damages, but the need to ensure that the sale and purchase contract (and subsequent deed of sale) covers those points agreed by the parties, or upon which they seek appropriate written contractual assurances.

It is doubtful as to whether the buyers would have been successful in their claim had not the clause expressly stating that the property was connected to the main drainage been included,

Properties are often sold ‘as seen’, without any sort of assurances about services and other matters given by the seller, although there remain certain statutory levels of protection.

The need for specific clauses relating to the sale and purchase being undertaken is one of the main reasons why we consider sellers and buyers should avoid using standard forms of contract, such as those which may be used by estate agents.