Termite claim has sting in the tail

A seller who knows there are termites in their property is liable for the cost of remedial works, even if the buyer has signed away this responsibility.

This is the ruling of the French Supreme Court in a recent case in which a property was sold "as seen", with the seller accepting no responsibility for latent defects (vices cachés).

The case concerned Mme Marie Roux who sold her third-floor apartment in the town of Chartres, Eure-et-Loire, to Antoine and Clemence Roussel.

As is frequently the case, the sale contract contained a clause that exonerated the seller from any guarantee of vices cachés concerning the structure of the property or the presence of termites.

Florian Arnaud, the avocat acting for Mr and Mrs Roussel, stated to Connexion that: "Although such a clause is often included in sale contracts, it can only be used where the seller had no knowledge of the defect, and where they acted in good faith.

"So, even though a property may be sold en état, a buyer has a right of redress if they were misled about an important fact concerning the condition of the property."

In this case the seller had given a guarantee that the property had no termites, as a survey report carried out as part of the sale had given the all-clear.

However, a second report on the whole block of flats carried out on the same day, but received later by the seller, did show that there were termites present on the third floor.

The owner passed the report on to the notaire - who then failed to communicate this new information to the buyers.

Several months after completion of the sale the new owners discovered the termites - and brought a legal action for compensation from the seller on the basis of the Garantie légale contre les vices cachés, the guarantee on latent defects.

The seller in turn sought to invoke the professional liability of the notaire, who had failed to pass on the information.

The issue then before the court was whether Mme Roux could be exonerated from liability for the termites on the basis that she had passed on all the information to the notaire.

Initially, the lower courts decided that, as Mme Roux had acted out of good faith, she was not liable, as the property was sold "as seen" with no guarantee for latent defects.

However, this was not how the Supreme Court saw it when it decided at the appeal hearing that Mme Roux was bound by a guarantee of latent defects as she had knowledge of the termites prior to completion of the sale.

The fact that she communicated this information to her notaire did not exonerate her from passing on this important information directly to the seller.

In addition, her good faith was also brought into question when the court learned that termite treatment works had been carried out in the apartment some 12 years previously.

This information had not been disclosed during the sale process.

Accordingly, Mme Roux was obliged to compensate the new owners for the cost of remedial works, with the notaire also found to have been negligent for failure to communicate the information to the buyers, for which compensation was payable to them.