Hidden Easements on French Property
20th March 2025
Hidden easements are not unusual on French property, so a sale and purchase contract needs careful drafting.
In a recent case heard in the French Supreme Court, the Cour de Cassation, a buyer had discovered a waste water network that ran under the property which had not been revealed during the purchase process. The buyer sought annulment of the sale as well as damages.
In French statute law, a buyer is protected against major hidden defects (vices cachés), although it is possible in the sale and purchase contract for a seller to exclude their liability, a practice that is common. Nevertheless, even where a seller includes such a clause, they remain liable if they knew of the defect, but did not inform the buyer. A professional seller can never claim such an exemption.
In the case, the contract stated that the buyer purchased the property 'as seen', declaring that it corresponded to what they had seen during their visits. In particular, that the buyer would have no recourse against the seller for any reason whatsoever, in particular due to "apparent defects and hidden defects."
On this basis the buyer was unable to bring a successful action under the vices cachés provisions of the law.
Nevertheless, under Article 1638 of the Civil Code, if the property sold is subject to an easement that has not been declared in the deed or is hidden, and which is significant, such that the buyer would not have purchased the property had they been aware of it, the seller may be sanctioned by the termination of the contract or damages. Once again, the seller can exclude their liability in the contract, except for those which result from their personal acts.
This guarantee is part of a more general principle in French law that the seller must assure the buyer peaceful possession of the property they have purchased.
Accordingly, the court highlighted the distinction between the law on hidden defects, which was intended to protect the buyer against defects in the structure of the property, and that for hidden easements, which was designed to offer protection against rights exercised by third parties,
They concluded that the sale and purchase contract only exempted the seller from hidden defects, as there was no express provision limiting their liability against hidden easements, stating "the non-guarantee clause of the condition of the property did not exempt the sellers from guaranteeing Mrs.[K] against the existence of a hidden easement encumbering the property.."