What should I do if my property’s asbestos diagnosis turns out to be wrong?
You’ve bought a property described as asbestos-free, and you’ve just discovered the presence of asbestos. You then realize that the diagnosis attached to the deed of sale is incorrect. What should you do? What steps should you take? Who should you turn to?
What could be the risks of exposure to asbestos?
Asbestos is a material that has been widely used in the construction industry in France for over a century. For example, it is estimated that nearly 150,000 tonnes of asbestos were used in France between 1973 and 1975 (source: Le drame de l’amiante en France). At the time, asbestos was highly valued for its many properties, including thermal and acoustic insulation, resistance to heat and fire, and resistance to chemical attack, all at a relatively low price.
However, after many years of massive use, it was discovered that this material was actually very harmful to human health, and that it can cause illnesses such as benign pulmonary and pleura diseases; or cancerous pathologies (source: Ameli.fr).
For this reason, its use was banned in France from January 1, 1997 by Decree no. 96-1133 of December 24, 1996, and regulations have been stepped up to encourage asbestos removal.
Mandatory diagnosis prior to sale
Asbestos is potentially harmful to health, and its use is now prohibited, but its presence is still present in many buildings. The legislator has introduced a compulsory asbestos survey for all buildings for which planning permission was issued before July 1, 1997.
Under article L.271-4 of the French Construction and Housing Code, all promises or deeds of sale for all or part of a built property must now include a “statement mentioning the presence or absence of materials or products containing asbestos”.
What materials must be diagnosed?
Owners of residential buildings are obliged, in the event of sale, to have a number of materials identified on several lists. Under the terms of Article R1334-15 of the French Public Health Code:
“Owners of residential buildings comprising a single dwelling shall, in order to draw up the statement provided for in article L. 1334-13 in the event of sale, have a survey carried out of materials and products on lists A and B containing asbestos.”
Details of these lists are given in article annexe 13-9 of the French Public Health Code.
List A covers materials likely to release asbestos simply as a result of ageing. These include flocking, insulation and false ceilings.
List B covers materials likely to release asbestos fibers when under strain, such as interior vertical walls (walls, partitions, posts, etc.), floors and ceilings, interior ducts, pipes and equipment, and exterior elements (roofs, light facades, etc.).
How is asbestos identified?
The diagnostician must search for the presence of asbestos in all accessible materials, without destructive work. For example, in a ruling handed down by the Third Civil Chamber of the Cour de Cassation on May 21, 2014 (no. 13-14.891), it was held that an asbestos diagnostician could be held liable if he failed to identify the presence of asbestos in the attic even though it was accessible via a trapdoor and no work of any kind was required.
The Third Civil Chamber of the Cour de Cassation has ruled that the lessor cannot be held liable if he fails to sufficiently inform the diagnostician of the extent of the property to be diagnosed, and that the diagnostician must inform himself of the elements he is required to verify, and request the information himself (ruling of the Third Civil Chamber of the Cour de Cassation, July 2, 2003, 01-16.246 ).
Lastly, it has been ruled that a simple visual inspection is not enough, and that the diagnostician must use all necessary means to carry out his mission properly. In this case, the diagnostician had refrained from carrying out sound probes, even though these would have made it possible to locate the asbestos present in the house (Third civil chamber ruling of the Cour de cassation, September 14, 2017, no. 16-21.942).
Can I hold the diagnostician directly liable?
No. Asbestos diagnosis is a contract between the seller and the diagnostician. The diagnostic error is therefore a contractual fault, but it also causes damage to the purchaser. The buyer is a third party to the contract. The diagnostician’s civil liability may be sought, as “Any act of man, which causes damage to another, obliges the person by whose fault it occurred to repair it”. Article 1240 of the French Civil Code.
This reasoning is constant in jurisprudence. In a ruling dated October 6, 2006 (no. 05-13.255), the plenary assembly of the Cour de cassation recognized that the extra-contractual liability of the author of a contractual fault could be engaged by a third party to the contract, if the latter had suffered prejudice.
It has also been ruled that the purchaser of a property who has received erroneous information is entitled to seek the tort liability of the diagnostician for the damage caused to him by the technician’s faulty performance of the contract he had entered into with the vendor (3rd Civil Division ruling of the Cour de cassation, July 9, 2020 n°18-23.920.
In addition, any diagnosis produced after April 1, 2013 is valid indefinitely.
As a result, it is possible for the damage for which compensation is due to be passed on to different purchasers in the event of successive sales. For example, a buyer could take action on the basis of extra-contractual liability against a diagnostician who made an error during a previous sale (Civil 3rd ruling of the French Supreme Court, May 19, 2016, 15-12.408).
What is the deadline for taking action?
The first thing to do is declare the discovery of asbestos to your home insurance company and your legal protection plan, if any.
Then, the ordinary statute of limitations applies: five years from the date of the damage, in this case, the discovery of the asbestos (Article 2224 of the French Civil Code).
What is my right to compensation?
The assessment of the buyer’s prejudice has been the subject of debate. Was it :
- a loss of opportunity to negotiate down the price of the property?
- a right to compensation for asbestos removal?
The position of the courts is now constant: an erroneous diagnosis leads to a certain material loss corresponding to the work required to restore the property, for example, and by analogy, in the case where the purchasers had not been informed of the advanced state of the termite infestation, the technical diagnostician had then been forced to carry out work to remedy it (Ch. mixte ruling, July 8, 2015 n°13-26.686). The diagnostician will therefore be obliged to make full reparation for the damage suffered by the purchaser ((3rd Ch. civile ruling, June 30, 2016 n°14-28.839).
Restoration of the property includes :
- Asbestos removal, i.e. the thorough cleaning of elements exposed to asbestos toxicity,
- Asbestos removal, which can be carried out by three different methods (removal, covering or encapsulation).
- Subsequent inspections to ensure that no asbestos remains.
All these steps must be carried out by a COFRAC-certified diagnostician.
Other damages are also compensable, such as loss of enjoyment during the work, for people who have to be rehoused, for example.
With the help of a lawyer, you can determine and value these losses. He or she will then seek the highest possible compensation, by injury, based on case law handed down by the courts in similar cases.
For all these misdiagnosis issues, we recommend that you turn to a lawyer who will be able to give you the best possible advice. Call on the lawyers in the AGN Avocats network, who are experts in this field and can advise you on the best strategy for your situation. Don’t hesitate to contact us by phone or e-mail, or make an appointment online at www.agn-avocats.com.
AGN AVOCATS – Real Estate Department
09 72 34 24 72