A heating system out of order following sale of a property amounts to a contractual failure by the seller.

In a recent case heard in the French Supreme Court, the Cour de Cassation, a couple took possession of a property they had purchased, when they found that the central heating radiators had burst, the consequence of a period of freezing weather.

The couple commenced legal proceedings against the seller on the grounds that they had failed to deliver the property as stated, in accordance with the obligation under Article 1615 of the civil code which states:

'L'obligation de délivrer la chose comprend ses accessoires et tout ce qui a été destiné à son usage perpétuel.'

As a belt and braces measure the couple also brought the action under Article 1641 of the civil code, the guarantee against hidden defects (vices cachés), which states :

'Le vendeur est tenu de la garantie à raison des défauts cachés de la chose vendue qui la rendent impropre à l'usage auquel on la destine, ou qui diminuent 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 court heard that the sellers had left some windows to the property open during a particularly cold spell.

The court considered that no action was possible under the guarantee of hidden defects as the event occurred after signing of the purchase contract; at the time of signing of the contract the radiators were in order.

However, as the heating system was an indispensable part of the property, without which the purchasers would not have bought it, the sellers were held responsible for a failure of delivery. They were ordered to pay compensation of €3,000.

In a similar case heard in the Court of Appeal sitting in Bordeaux, a couple purchased a property for €274,000.The purchase price included a sum for a wood burner and other effects.

The wood burner had been purchased by the owners under 10 years previously. The court heard that the installation did not conform with relevant standards.

Accordingly, the new owners brought an action under the 10-year building guarantee (garantie décennale).

In court, the sellers argued that they as they were not the manufacturer of the wood burner they could not be held responsible if it was defective.

In addition, they considered that the installation of a wood burner could not be considered building work that fell within the scope of the 10-year building guarantee.

They pointed out that at the time of purchase of the property the buyers were aware of the fact that the wood burner and its installation did not conform to relevant standards.

All of these arguments were rejected by the court, who ruled that the garantie décennale applied to damage which, affecting the property in one of its constituent elements, makes it unfit for its intended purpose. It does not matter that the defect related to equipment in the property and not the general building structure.

Although the purchasers had prior knowledge of the lack of conformity the court ruled that this did not deprive them of the right of the ten-year guarantee as they had not waived their right to the guarantee in the sale and purchase contract.

The sellers were ordered to pay the purchasers €6,381, corresponding to the costs of replacing the installation and the wood stove.