VSHow can you suspect that a house put up for sale through a real estate agency conceals dangerous places? José X, a true miracle of that of the Y, still wonders.
On March 14, 2016, this professional roofer agrees to visit it with his brother, in order to inspect the roof. Led by Mr. W, a real estate agent, he goes up to the attic. He takes a few steps… and tumbles 8 meters lower, with serious head trauma.
In the attic, José stepped on a funnel, a gaping hole that was supposed to serve as a skylight, but considered, because it was concealed by boxes – instead of being protected by barriers -, as a “real trap” by the legal expert responsible for describing the premises.
The owners’ insurer nevertheless refusing to indemnify José’s damage, the latter took legal action. Mand Jean-Thomas Kroell, his lawyer, invokes article 1384 (old, 1242-1 new) of the civil code, according to which one is responsible for the damage caused by “things that one has in one’s custody”.
According to the relevant case law, when the ” thing (in this case, the attic floor) is “inert”the victim must prove that he caused the damage because“she had an abnormal position or that she was in poor condition”. He therefore explains that the floor, with its camouflaged hopper, had a character ” unnatural “.
The owners and their insurer maintain that José has “committed a careless mistake”, but their argument is dismissed, given the expert’s report. They then turn against the real estate agent: they claim that “the guard of the thing” had been transferred to him. Argument also rejected because “the transfer of custody only takes place if there is a transfer of the use, control and direction of the thing”which is not the case during a simple visit.
The Ys assure that they had informed him of the danger, which he denies. They reproach him for not having authorized them to attend the visit. The Nancy Court of Appeal shares the responsibilities, on February 10, 2022. It judges, in fact, that Mr. W had to “inquire with the owners of the absence of danger” and “verify this absence of danger himself”before introducing third parties.
Mr. W could then have been the first victim of this danger, like his colleague Mr.me A, responsible for estimating Mr. Z’s secondary residence, who gave him the keys. After opening the door, she falls into a hole several meters high and fractures her vertebrae. Five months earlier, a company responsible for eradicating dry rot had cut part of the floor, and Mr. Z had failed to notify the agency. The Nancy Court of Appeal orders him to compensate for the damage suffered by Mrs.me A (some 130,000 euros), on January 6, 2020.
Real estate agents are not always condemned: on January 21, 2020, for example, the Montpellier Court of Appeal judged, after the collapse of a floor, and the passage of a potential buyer through it, that the agency did not have to carry out “prior visit” to ensure the solidity of the floor, which showed no “apparent defect”.
On March 29, 2007, the Paris tribunal de grande instance cleared the company Sicofim, sued by a visitor who had injured himself while passing through a masked glass roof. He judges that“she could not suspect” the risk of its collapse.
One thing is certain: after their accident, those interested have all given up on their purchase.