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The Warranty Against Eviction Applies to All Real Estate Sales
Whether the sale involves a house, an apartment, or a parcel of land, the seller is required to warrant to the buyer that they will be able to enjoy the property peacefully and that no third party will be entitled to assert any rights over it.
This warranty applies even if it is not expressly provided for in the deed of sale (French Civil Code, Article 1626).
Good to note: The warranty against eviction doesn’t apply to judicial sales.
Causes of Eviction
The eviction may be caused either by the seller or by a third party (such as a neighbour or a creditor).
Eviction Caused by the Seller
Examples:
- the seller has sold the property to two different buyers, resulting in the first buyer being evicted (French Court of cassation, Third Civil Chamber, 29 April 1981, No. 79-16.649);
- the seller has retained a right over the property (such as a usufruct or an easement);
- the seller claims to have retained possession and enjoyment of the property and therefore to have reacquired ownership through acquisitive prescription (French Court of Cassation, Third Civil Chamber, 30 June 2021, No. 20-14.743).
Eviction Caused by a Third Party
Examples:
- a third-party claims ownership of the property sold;
- a third party asserts an undisclosed easement over the property sold (the property sold is the servient tenement);
- a person asserts an undisclosed mortgage or enforces a seizure of the property.
The buyer may bring an action under the warranty against eviction as soon as they are deprived, in whole or in part, of the property.
Procedure for Bringing an action under the warranty against eviction
Who May Bring an Action?
An action under the warranty against eviction may be brought by the evicted buyer or by any person who has succeeded to the buyer's rights (the buyer's heirs or successors in title) against the original seller if the latter is indeed responsible for the eviction (French Court of Cassation, Third Civil Chamber, 28 March 1990). If the seller dies, the seller's heirs become liable for the obligation to warrant against eviction.
Time Limit for Bringing an Action
An action under the warranty against eviction relating to real property (a proprietary action) is subject to a 30-year limitation period (French Civil Code, Article 2227).
Not to be confused with: if the action is a personal action, as in the case of an action relating to movable property, the limitation period is five years (French Civil Code, Article 2224).
The effects of the Warranty Against Eviction
Suspension of the Purchase Price
In the Event of Total Eviction
If the buyer has not yet paid the purchase price, the buyer may withhold payment until the seller has put an end to the disturbance (French Civil Code, Article 1653).
- Refund of the Purchase Price
In the Event of Total Eviction
If the eviction is total, that is, if the buyer is completely deprived of the property, the buyer may seek:
- rescission of the contract and reimbursement of the purchase price paid;
- restitution of the fruits;
- reimbursement of the legal costs incurred;
- damages for the loss suffered (French Civil Code, Article 1630).
In case of partial eviction
If the partial eviction is of such significance that the buyer would not have purchased the property had they been aware of the risk of eviction, the buyer may seek rescission of the contract.
If the partial eviction does not justify termination of the contract, the buyer may seek a proportionate reduction of the purchase price corresponding to the part of the property of which they have been deprived (French Civil Code, Article 1637).
Good to note: It is for the court to determine whether the eviction is sufficiently serious to justify rescission of the contract.
Undisclosed Encumbrances
If, after the purchase, the buyer discovers the existence of undisclosed encumbrances (for example, a non-apparent easement) affecting the use of the property, the buyer may seek rescission of the sale if those encumbrances are sufficiently significant, or compensation for the loss suffered (French Civil Code, Article 1638).
Good to know: It is for the court to determine whether the eviction is sufficiently significant to justify rescission of the contract.
Clauses Limiting or Excluding the Warranty Against Eviction
Such clauses must be express
They must be set out in the deed of sale and drafted in sufficiently detailed terms.
The parties may agree that the warranty will not apply to disturbances caused by third parties or to undisclosed encumbrances. However, the seller may not exclude liability under the warranty against eviction arising from the seller's own acts (French Civil Code, Article 1628).
Protection of non-professionals
Where a real estate sale is concluded between a professional and a non-professional, clauses limiting or excluding the warranty against eviction (whether arising from the seller's own acts, third parties, or undisclosed encumbrances) are prohibited and deemed unwritten (French Consumer Code, Article R. 212-1).