Every seller warrants against eviction, meaning that if the buyer is deprived of the whole or part of the thing bought by a final judgment based on a right existing before the sale, the seller must answer. To hold the seller liable, the buyer must be evicted by a final judgment, the cause must have existed before the sale, and the seller must have been notified of the suit for eviction (summoned as a party). If evicted, the buyer may recover the value of the thing, the fruits, the costs of the suit, the expenses of the contract, and, if the seller was in bad faith, damages.
You buy land, then someone with a better right sues and a court takes it from you. Are you left holding nothing? No — the warranty against eviction makes the seller answer.
What the Warranty Is
In every sale, the seller impliedly warrants against eviction. Eviction takes place when the buyer is deprived of the whole or a part of the thing purchased by a final judgment, based on a right prior to the sale or an act imputable to the seller. In short, if a third person’s pre-existing right results in a court taking the property from the buyer, the seller is liable. It is a protection built into the sale: the buyer paid for ownership and quiet possession, and the seller stands behind that.
The Requirements to Hold the Seller Liable
Three things must concur:
- The buyer is evicted (deprived) by a final judgment — a mere threat or claim is not enough; there must be a final court decision taking the thing;
- The eviction is based on a right existing before the sale (or an act imputable to the seller); and
- The seller was notified of the suit for eviction at the buyer’s instance — the seller must be summoned as a party (impleaded) in the case, so the seller can defend the title.
The notice (vouching-in) requirement is crucial: a buyer who is sued over the property must bring the seller into the case. If the buyer fails to notify the seller and loses, the seller may not be liable on the warranty, because the seller was denied the chance to defend.
What the Buyer Can Recover
If eviction occurs and the requirements are met, the buyer may recover from the seller:
- The value of the thing at the time of eviction (which may be more or less than the price);
- The income or fruits, if the buyer was ordered to deliver them to the party who evicted them;
- The costs of the suit that caused the eviction, and, where proper, of the suit against the seller;
- The expenses of the contract, if the buyer paid them; and
- Damages and interest, and ornamental expenses, if the sale was made in bad faith (the seller knew of the defect in title).
Partial Eviction and Waiver
If the buyer is deprived of only a part of the thing, and that part is so important that the buyer would not have bought without it, the buyer may rescind the whole sale (returning what remains) or claim a proportionate indemnity. The parties may increase, diminish, or even waive the warranty by stipulation, but a waiver made by a buyer without knowledge of the risk of eviction does not free a seller in bad faith — a seller who knew of the defect cannot hide behind a bare waiver.
Practical Advice
- If someone sues you over property you bought, notify and implead the seller immediately — failing to bring them into the case can cost you the warranty.
- Due diligence before buying (checking the title and prior claims) reduces the risk of eviction in the first place.
- If evicted, you can recover the value, fruits, costs, and expenses — and damages if the seller was in bad faith.
Frequently Asked Questions
What is the warranty against eviction? The seller's implied warranty that if the buyer is deprived of the whole or part of the thing bought by a final judgment based on a right existing before the sale, the seller must answer.
What must I prove to hold the seller liable? That you were evicted by a final judgment, that the cause existed before the sale, and that you notified and impleaded the seller in the eviction suit so they could defend the title.
What can I recover if I am evicted? The value of the thing at eviction, the fruits you had to deliver, the costs of the suit, the expenses of the contract, and, if the seller acted in bad faith, damages and ornamental expenses.
What if I only lose part of the property? If the lost part is so important you would not have bought without it, you may rescind the whole sale returning what remains, or claim a proportionate indemnity.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you are being sued over property you bought, or lost it to a prior claim, our firm can help you recover from the seller. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.