4. Contract Conditions when Buying Property in France

1. 4.1. Conditional Clauses
2. 4.2. Cooling Off Period
3. 4.3. Options to Buy
4. 4.4. Deposit
5. 4.5. Statutory Disclosures
6. 4.6. Local Rates
7. 4.7. Fixtures/Fittings

4.5. Statutory Discloser Obligations on Sale of French Property

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

1. 4.5.1. 'Hidden Defects'
2. 4.5.2. Surface Area
3. 4.5.3. Easements/Rights of Way
4. 4.5.4. Tenancies/Licences

4.5.1. Hidden/Latent 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 and it is only valid for two years following the date when it was first discovered. So you need to act within two years of finding the problem.

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

A more general clause in the sale contract stating that the property is sold 'as seen' (en l'état), and that the seller does not accept any responsibility for latent defects, would not necessarily exonerate the seller, particularly if it could be proved that they had acted in bad faith.

Unfortunately, the use of such a general clause has become common practice, with many notaires now automatically including an exoneration clause for the seller in a sale contract. However, a court of law would not necessarily accept that the liability of the seller could be absolved so easily. The court would be equally interested in the intention of the parties, not just the written text.

At the least you should certainly be hesitant about signing unless you fully understand what you are buying. If you have had a full survey of the property carried out, then that may provide the reassurance you need to accept such a clause in the 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. Given the protection offered to the buyer concerning the surface area, you may find that professionals err on the side of caution in this task, in order to avoid being successfully sued by the seller in the event of a post-contract dispute between buyer and seller about the surface area of the property.

Other than in relation to the sale of apartments, there are no statutory guarantees in relation to the surface area of houses or land. It is also rare indeed that any contractual guarantees would be offered on the surface area of a house or on the land surface. It is more likely to be the case that the contract will contain a fairly standard clause that gives no guarantees.

If you are in any doubt, you need to do your own measurements, although get advice on just what parts of the property can be included in the calculation.

4.5.3. Easements/Rights of Way

An easement is a restriction on the right of use or possession of property agreed to by one party for the benefit of another party.

In France it is known as a 'servitude'.

Once in place the easement 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 an easement, and is not binding on future owners.

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

An investigation into the existence of public easements 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 easements, 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 an easement, then the sale contract makes clear your rights. Thus, if access to all or part of the property is dependent on an easement, 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 easement, 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.

You can read more about these issues in our Guide to Property Rights in France.

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.