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THE GUARANTEES OF THE « DIY SELLER »

THE GUARANTEES OF THE « DIY SELLER »

Are you the owner of a self-built home or an apartment which you renovated yourself? Are you what’s known as a “DIY seller” rather than a professional builder? Are you concerned about your responsibilities towards the purchaser if  you decide to sell your property?
 
Apart from the planning permission or approval from the association  of  co-owners  required  for the completion of the work, what other guarantees do you need to give to the buyer? In particular if defects were to become apparent after the sale?
 
In reality, there are two types of guarantee: the guarantee against “hidden defects” and the ten- year guarantee.

The guarantee against hidden defects

Under French legislation, the seller is held accountable for the guarantee against hidden defects, even  those  that  he  was  unaware  of, unless other provisions are made in the contract of sale. Any such clause limiting the seller’s liability would only be valid for a non- professional entering into a sale in good faith, i.e. a seller who was unaware of the defect on the day contracts were exchanged. A professional seller can therefore under no circumstances be exempted from any such guarantee, no matter what the terms of the contract of sale.
 
However, even where a clause limiting the seller’s liability is included in the contract of sale, case- law equates the “DIY seller” to a builder and therefore a professional, regardless of whether or not the seller is a professional in the building trade. This applies in particular to a professional builder when selling his main residence, but also to a postman who puts a property on which he has carried out work up for sale. As a result, a non-professional seller who had constructed a chimney himself without respecting safety rules and standards  was  successfully  prosecuted  in court, in spite of the fact that he had no particular expertise in the field.
 
Therefore, once the seller has carried out work on his property himself, regardless of whether he is a professional in the building trade or not, he
loses the right to benefit from a clause limiting his liability in terms of guarantees.
This guarantee shall apply to the “DIY seller” for a period of 2 years beginning from discovery of the defect.

The ten-year guarantee

Under the terms of Articles 1792 et seq. of the French Civil Code, “any person who sells, after completion, a structure that he built himself or had built” is considered to be the constructor, and all constructors are “fully responsible, towards the client or purchaser of the structure, for any damage, even damage resulting from defects in the land itself, which adversely affects the structural integrity of the building, or which affects one of its constituent parts or one of its pieces of equipment, in such a way as to render it unfit for its intended use.”
 
Consequently, the seller who has built a structure, even if he has no competence in the property trade, is responsible towards its purchaser and its sub-purchasers for any damage caused by the said structure, for a duration of ten years following its construction. Unlike the guarantee against hidden defects, this guarantee is public policy, and hence cannot be exonerated by including a clause in the contract of sale.
 
In fact, it is the size of the work carried out which determines whether or not it may be qualified as structural work under the terms defined by these articles of the French Civil Code, and hence whether or not the ten-year guarantee may be applied. This applies to relatively large work, such as the construction or extension of a building, or façade restoration… However, case- law here also has adopted a broad interpretation of the definition as constructor, in relation to damage qualified as “intermediate”, which does not adversely affect the structural integrity or purpose of the building, such as the emergence of small cracks on the surface, or discoloration of the façade.
 
This guarantee shall therefore apply to the  “DIY seller” for a duration of 10 years following completion of the work.
 

30/10/2020
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