4. Contract Conditions when Buying Property in France

1. 4.1. Conditional Clauses
   4.2. Cooling Off Period
   4.3. Options to Buy
   4.4. Deposit
   4.5. Statutory Disclosures
   4.6. Local Rates
   4.7. Fixtures/Fittings

4.5. Discloser Obligations of Seller of French Property

In particular, they must provide information on the following matters.

1. 4.5.1. 'Hidden Defects'
2. 4.5.2. Property Size
3. 4.5.3. Servitudes
4. 4.5.4. Tenancies/Licences

4.5.1. Hidden Defects

This is an important source of statutory protection for a buyer against a seller who may not have disclosed important information about the condition of the property.

It must be something of a profound nature of which the seller was aware at the time of the sale and about which, if the buyer had known, they would not have proceeded with the purchase, or would have offered a lower price.

The defect must also be something that was not reasonably apparent at the time of the sale and a court of law will assume the buyer adopts a degree of vigilance in the whole process.

It is, therefore, a difficult rule to enforce in the courts.

The clause does not apply where it can be demonstrated that the seller informed the buyer at the time of the sale.

This may be best evinced by inserting a clause in the contract that makes clear that the buyer has been informed about the defect and accepts full knowledge and responsibility.

Alternatively, a clause in the sale contract effectively stating that the property is sold 'as seen' would exonerate the seller, unless it could be proved that they had acted in bad faith.

Unfortunately, the use of such a clause is becoming an increasing practice, with many notaires now automatically including an exoneration clause in a sale contract.

If a court decides that a property was sold with a hidden defect it can reduce the sale price, or declare the sale null and void.

The rule does not apply to the sale of new dwellings, which are subject to separate regulation (a guarantee against major defects for ten years).

Neither does it apply if the buyer is a property professional, engaged and registered on a professional basis in the construction, buying, selling and/or renting of property in France.

4.5.2. Surface Area

If this figure is omitted, or incorrect by greater than 5%, then the sale can be annulled.

The seller can carry out the measurement survey themselves or engage a professional.

It is rare indeed that any contractural guarantees would be offered on the surface area of a house or on the land surface.

If you are in any doubt, you need to do your own measurements.

You can try and insist on a guarantee, but it is more likely to be the case that the seller will want a clause that grants waiver in relation to all dimensions!

4.5.3. Servitudes

A ‘servitude’ is a restriction on the right of use or possession of property agreed to by one party for the benefit of another party.

Once in place the servitude normally applies to the benefit of the property, rather than any particular owner. So it is normally binding on future owners.

If the restriction, or right, is merely to the benefit of a person, rather than to the property itself, then it is an 'authorisation', not a servitude, and is not binding on future owners.

The most common servitudes are a right of way, flow of water, right of light and right of planting. There are also public servitudes relating to the presence of cables, pipes and roads etc.

An investigation into the existence of public servitudes should be undertaken by the notaire, but their enquiries may not always be as comprehensive as may sometimes be required.

In addition, sellers are not always entirely forthcoming about servitudes, some of which may be so longstanding that they are not even recognised as such!

You need to ensure that, if you are reliant on a servitude, then the sale contract makes clear your rights. Thus, if access to all or part of the property is dependant on a servitude, it is paramount that this is clearly enshrined in the legal documentation for the sale. Do not rely on verbal assurances, or imprecise legal drafting.

You should ensure, in particular, that your successors have the benefit of the servitude, failing which you may have problems passing it on, should you wish to later sell the property.

The contract should also make clear that completion is subject to your unencumbered ownership of the property.

4.5.4. Tenancies/Licences

The seller is required to state whether or not there are any other legal interests over the land, including tenancies or licences.

However, sellers have been known to omit to mention, for instance, an informal licence granted to a local farmer on part of the land, which may not be known to the notaire.

Just because a farmer cuts the grass on the land for hay does not mean an agricultural tenancy is created, but if the owner receives some kind of payment in return, then it is quite possible a tenancy is in existence.

You should also ensure that the contract makes it clear that, on completion, the seller is required to grant vacant possession of the property. There have been cases in the past where family members or lodgers have refused to move out of a property and the buyer has only found out once the sale has been completed!

If there are any doubts, then insist that a penalty clause is included in the contract if the seller does not grant vacant possession. It is also possible to include a clause that states all the funds will not be released to the seller until you have obtained vacant possession.